Wednesday, September 24, 2014

The remarkably porous argument for Justices Ginsberg and Kagan to recuse themselves in marriage cases

Making the rounds in conservative Christian “legal” circles (of questionable erudition) is the demand that Justices Ginsberg should recuse themselves from the inevitable marriage case(s) to come before the Supreme Court. Mat Staver's argument, on behalf of Liberty Counsel, seemed to rest primarily on the fact that Justice Ginsberg described, for a group of law students, what might cause the Court to take up a same-sex marriage case.

Now comes Kayla Moore, president of the Alabama-based Foundation for Moral Law. Moore. Kayla is the wife of Judge Roy S. Moore and doesn't seem to be a lawyer. Kayla claims that Justices Ginsberg and Kagan disqualified themselves by officiating same-sex marriages:
By performing same-sex marriages, Justices Kagan and Ginsburg have clearly indicated how they will vote in Utah’s case.
[…]
[Claiming a violation of the code of conduct] Ginsberg's statements not only tip the court’s hand as to how she will vote, but they also constitute a warning to lower courts that they had better rule in favor of same-sex marriage or the court will step in and reverse them.
Not at all. The people want it both ways; States' rights when it suits their cause; Federalism when it doesn't. Kagan and Ginsberg officiated the same-sex marriages of close friends. Kagan, last Sunday, joined her former law clerk and his partner. Ginsberg, last year, officiated at the marriage of close friend and then president of the Kennedy Center. Both marriages were performed in locales where they are legal.

Requiring other states to recognize same-sex marriages is an entirely different matter. Even if these two believe that states should recognize same sex marriages, requiring them to do so rests on constitutional issues rather than sentiment.

Ms. Moore knows this. She also knows that these justices are not going to recuse themselves. What she is trying to do (along with Staver), I suspect, is to somehow cause these justices to lean in the opposite direction in order to prove their impartiality. Good luck with that. Justices Ginsburg and Kagan have nothing to prove. They are certainly not interested in the likes or dislikes of Christian conservatives who seek to defy the Establishment Clause.

Judge Moore, you might recall, was removed from office once for refusing to remove a Ten Commandments plaque from his court. He is now (scarily) sitting as Chief Justice of the Alabama Supreme Court, the result of a mismanaged opposition campaign. Roy Moore is a bigot. In 2002, as Alabama Chief Justice, Moore issued an opinion that expressed his belief that the State should use its powers to punish “homosexual behavior.”

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