August 9, 2022

Traditional marriage group calls on Ginsburg to recuse

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Ginsburg-GeorgetownBy Tony Mauro, From Supreme Court Brief

A leading group that opposes same-sex marriage is urging U.S. Supreme Court Justice Ruth Bader Ginsburg to recuse herself from the landmark cases that could decide whether such marriages must be permitted under the Constitution.

The National Organization for Marriage’s amicus brief in the cases set for argument April 28 criticized Ginsburg for suggesting in a February press interview that increased public acceptance of gays makes it “doubtful” that a ruling in favor of same-sex marriage “wouldn’t be accepted.”

Ginsburg was also quoted as saying of gay people, “In recent years people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor—we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”

The group’s brief argues that public opinion has not shifted decisively toward same-sex marriage and asserts that “Justice Ginsburg’s remarks call into question her impartiality in and constitute public comment about a case pending before her. We would be remiss not to suggest that recusal is therefore warranted.”

The brief cites a canon in the code of conduct for federal judges that says, “a judge should not make public comment on the merits of a matter pending or impending in any court.” The brief also points to Justice Antonin Scalia’s recusal in the 2004 case challenging the words “under God” in the Pledge of Allegiance. The code of conduct does not apply to Supreme Court justices, though they have said they look to it for guidance.

Counsel of record John Eastman, for the National Organization for Marriage, told the SCB that Ginsburg’s remarks in the February interview with Bloomberg News were “very inappropriate” and necessitated her recusal.

As a lawyer for an amicus group, rather than a direct party, Eastman said he did not feel it was his place to make a formal request for her recusal, but he included it in the brief, in a footnote, because “she has an obligation to decide on her own” to step aside. Eastman is a professor and director of the Constitutional Jurisprudence Clinic at Chapman University Dale E. Fowler School of Law and chairman of the board of the National Organization for Marriage.

Lawyers for parties opposing same-sex marriage in the pending cases did not respond to requests for comment. Ginsburg declined to comment.

The main goal of the organization’s brief was to debunk the notion that the tide of public opinion has turned dramatically in favor of accepting same-sex marriage in recent years. “That’s the impression coming from the Northeast corridor, The New York Times, etc.,” Chapman said.

In fact, Chapman said, the organization’s tally of the 39 state ballot initiatives on the subject shows that nearly 85 million votes were cast—more than 51 million in favor of the traditional definition of marriage, and only 33 million against.

“Collectively, that is a margin of 60.93 percent to 39.07 percent, an overwhelming landslide in American politics,” the brief states. “A large majority of the states, and large majorities of the people in those states, continue to adhere to this historical, biologically-rooted definition of marriage, not out of some senseless devotion to antiquity but as the result of a considered policy judgment.”

The National Organization for Marriage political director, Frank Schubert, also stated that some recent polls have shown a drop in support of same-sex marriage, while other polls that have been touted by gay rights groups were flawed. In one poll that showed high percentages of acceptance of same-sex marriage, people were first asked if they believed gay or lesbian relationships in general should be legal, and then were asked about same-sex marriages. This, the brief stated, is an example of “priming” that makes it more likely that the second question will be answered affirmatively.

“[T]he most accurate statement of public opinion on the issue of the definition of marriage is that Americans have conflicting viewpoints on the issue,” the brief concluded. “Neither side has ‘won’ the debate, but one thing is clear: It is a debate that should be resolved by voters and legislators through the democratic process, not one that is truncated and its outcome mandated by [the Supreme] Court.”

IMAGE: Supreme Court justice Ruth Bader Ginsburg on stage during a talk with Law Dean William Treanor for the Annual Dean’s Lecture at Georgetown University Law Center in February. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

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