Bryan Fischer
Ginsburg and Kagan have legal duty to recuse in marriage cases
By Bryan Fischer
October 2, 2014

Follow me on Twitter: @BryanJFischer, on Facebook at "Focal Point"

The Supreme Court will, perhaps even in this session, take up the issue of sodomy-based marriage. If it does, justices Ruth Bader Ginsburg and Sonia Sotomayor will have an obligation to step off the bench for those cases on the grounds that their impartiality has been severely compromised.

Both have performed sodomy-based "wedding" ceremonies. Kagan performed her first one on September 22 of this year, and Ginsburg has done the deed multiple times, including at least one in the Supreme Court building itself. Thus they have clearly tipped their hand by their actions as well as their words. They have publicly demonstrated that their minds are already made up on the issue. It is inconceivable that either of them now would vote against the "marriages" they themselves have solemnized. They would stand self-condemned.

According to the Washington Post, Ginsburg fully intended to send a message when she performed her first sodomy-based wedding ceremony. "I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship."

Ginsburg later said same-sex "marriage" represents the "genius of our Constitution."

On a different but equally explosive social issue, abortion, Amanda Frost, professor at American University Washington College of Law, was openly critical of Ginsburg for publicly taking sides on the part of the pro-death crowd in a Texas case.

"She should have erred on the side of caution and avoided making any statements about legislation at issue in a pending case," said Frost. She added said that under the federal law governing the disqualification of judges, including Supreme Court justices (emphasis mine), recusal is required when a judge has "expressed an opinion concerning the merits of the particular case in controversy."

As Frost points out, the necessity for Kagan and Ginsburg to recuse is not just a matter of fairness or rightness. It's also a matter of law. They have a statutory obligation to recuse. If they refuse to step off the bench when and if marriage cases come before them, they would be breaking federal law. They would be, from a strictly legal standpoint, committing a federal crime. Their sacred responsibility is to uphold the law, not break it.

Title 28 of the U.S. Code includes the legal requirements for recusal. This Title opens with a glossary of terms and their definitions so that the meaning of this law is unambiguous.

The first definition makes it clear that the Supreme Court is included in its provisions. This is not a section of code that applies only to lower courts. This is evident from the plain wording in the definition: "The term 'court of the United States' includes the Supreme Court of the United States..."

And it clearly, evidently and obviously applies not just to the Supreme Court but to the individual justices who sit on the Court: "The term 'justice of the United States' includes the Chief Justice of the United States and the associate justices of the Supreme Court."

In Section 455, we find this: "Any justice...of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

"Shall disqualify" means this is not a guideline or a suggestion. "Shall" means "shall," period.

There are no other judges in the federal system who are referred to as "justices." As the list of definitions at the beginning of Title 28 make clear, "judge" is the proper term for those who sit on the appeals court benches. The appeals courts, just one rung below the Supreme Court, are ruled by "judges," not by "justices."

So when Section 455 applies the provisions of this law to "justices" it is clearly and without question bringing the justices of the Supreme Court under its authority.

Now there can be no doubt that the decisions of Ginsburg and Kagan raise thoroughly reasonable questions about their ability to be neutral, impartial and objective in gay "marriage" cases. And thus the legal standard of Section 455 has clearly been met and exceeded. They have a duty to recuse themselves, leaving the other seven justices to deliberate and rule.

Kagan obviously understands the principle of recusal. She served as President Obama's Solicitor General before being elevated to the Court, and recused herself 21 times in the first 55 cases that came before the Court, because she had worked on those cases in her previous capacity. Overall, she has recused herself more than 100 times. Knowing that her impartiality in these cases was clearly a matter of concern, she stepped aside, as morality and judicial integrity demand.

Bottom line: Ruth Bader Ginsburg and Elana Kagan have an ethical, moral, legal and constitutional duty to recuse themselves in any same-sex "marriage" cases that come before them. It's. The. Law.

(Unless otherwise noted, the opinions expressed are the author's and do not necessarily reflect the views of the American Family Association or American Family Radio.)

© Bryan Fischer


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)


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