The Foundation for Moral Law, an organization created by Christian totalitarian Justice Roy Moore of the Supreme Court of Alabama, is joining Mat Staver in calling for Justices Ginsburg and Sotomayor to recuse themselves from any cases involving same-sex marriage. Their argument is simply absurd.
Kayla Moore, President of the Montgomery-based Foundation for Moral Law, today called upon U.S. Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg to recuse themselves from a case involving same-sex marriage because each of these Justices has personally performed a same-sex marriage.
Justice Kagan officiated September 21st at a same-sex marriage for her former law clerk Mitchell Reich and his partner Patrick Pearsall in Chevy Chase, Maryland. Justice Ginsburg performed a same-sex marriage for two men at the Kennedy Center for the Performing Arts in Washington DC in August 2013.
“Justice Kagan’s actions are especially improper,” Ms. Moore said, “because she performed this same-sex marriage while a case concerning same-sex marriage is pending before the Supreme Court. The State of Utah has filed a petition for writ of certiorari asking the Court to consider an appeal from a 10th Circuit decision invalidating Utah’s prohibition against same-sex marriage. The Foundation for Moral Law has filed an amicus brief supporting Utah’s petition. By performing same-sex marriages, Justices Kagan and Ginsburg have clearly indicated how they will vote in Utah’s case.”The Code of Conduct for United States Judges, Canon 3(A)(6), provides that “A judge should not make public comment on the merits of a matter pending or impending in any court.” The Commentary on the Code adds that “If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality… .” Ms. Moore added, “Officiating at a same-sex wedding involves not only comment but also actions that speak louder than words and creates at least an appearance of impropriety.”
First of all, that code of conduct does not require recusal and Supreme Court justices are exempted from it anyway (for the obvious reason that lower court judges can always be replaced but Supreme Court justices cannot). And their argument is nonsensical. Did anyone doubt which way they were going to vote before any of that? Of course not. Does anyone doubt that Justices Scalia, Thomas, Alito and Roberts will all vote against equality in any such case? Of course not. Scalia and Thomas have spoken out bluntly against same-sex marriage in previous rulings, but that doesn’t mean they should recuse themselves.
This is just desperation. They know there will be no recusals. They’re just setting it up to whine later when they lose.