Although advocates of marriage equality were victorious in two Supreme Court cases, the court avoided giving a direct answer to the central question of marriage equality.
Since the 2013 rulings, several states under Republican control passed laws in an effort to ban recognition of same sex marriages in their state. Ironically, most courts followed a cue from Supreme Court Justice Antonin Scalia on same sex marriage to strike those laws down. Hard to believe, but in this case, that is good news because even though he is ideologically opposed to marriage equality, Scalia’s opinions in two cases helped strike down state laws, like the one in Utah, designed to ban same sex marriages. Several courts also relied on Scalia’s analysis in the Lawrence v. Texas, where he admitted that preserving traditional marriage was just a kinder and gentler way for the state to express its moral disapproval of same sex couples. They also relied on Scalia’s prediction that the Supreme Court’s ruling in U.S. v. Windsor would make recognition of marriage equality, inevitable.
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion … is that DOMA is motivated by “bare … desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
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Still, the Supreme Court will address marriage equality in its review of Utah’s ban on same sex marriages. That has homophobic conservatives nervous. With vote suppression being all the rage in elections, conservatives hope that if they apply the concept at the SCOTUS, they can rig a win in their war on marriage equality.
A Montgomery Alabama based group called Foundation for Moral Law is trying to force Justices Ruth Bader Ginsberg and Elena Kagan to recuse themselves when the Court rules on Utah’s anti-marriage equality law. The group especially has its breeches in a twist with Kagan because she performed a same sex marriage in Maryland after the Court decided to consider Utah’s anti-marriage equality law. Even if Justice Kagan recused herself, conservatives still fall short. Since Bader Ginsburg officiated at a same sex marriage in DC, albeit before the SCOTUS agreed to hear the Utah case, that’s close enough to suggest that Bader Ginsburg lacks the independence to decide the constitutionality of a law in Utah.
According to the Foundation’s president, Kayla Moore:
“Both women, she explained, have officiated at gay marriage ceremonies and otherwise revealed, in violation of the court’s code of conduct, how they might vote in a pending case filed by the State of Utah.”
By that standard, all of the Supreme Court Justices should recuse themselves, since they have “otherwise revealed” how they might vote on same sex marriage just by virtue of ruling in two other marriage equality cases that were before this court. Some, like Scalia, have otherwise made clear how they will vote on any same sex marriage case. The difference is only that Scalia’s bias is one the Foundation for Moral Law likes.
The Foundation’s real objection to Bader Ginsberg and Kagan is they don’t share the Foundation for Moral Law’s homophobic views.
Since the remaining Justices did not officiate same sex marriages, by the Foundation’s standard, that means they are “objective.” After all, saying you are opposed to same sex marriages on “moral grounds” as Justice Scalia did, in no way suggests how he intends to vote on a state’s law banning same sex marriage.
Sarcasm aside, the Foundation is trying to suggest that Bader Ginsberg and Kagan’s public acts and statements reflect bias, but the actions, relationships, prior rulings and public statements of conservative Justices do not. Take Justice Scalia, as described in a recent article by The Atlantic.
Since Scalia’s appointment in 1986, he has succeeded brilliantly in seizing the spotlight, establishing himself as a conservative hero. He told one questioner to “get over it!” when asked about Bush v. Gore, and responded to pro-choice protesters with an indecent Sicilian hand gesture. Confronted politely by a gay student, he snapped, “If we cannot have moral feelings against homosexuality, can we have it against murder?
Like much that comes out of the mouths of conservatives, their concern for ethical standards is very selective. Clarence Thomas’s spouse, Ginny, was a paid lobbyist for the anti-affordable Healthcare movement and a paid activist for the Koch Brothers’ agenda, Justice Thomas should recuse himself from all cases that involve issues of interest to his wife’s employers, including marriage equality. Moreover, Thomas and Justice Alito were guests at several Koch Brothers retreats. By the Foundation’s reasoning, they should recuse themselves from cases that address issues, including same sex marriage, of concern to the Koch brothers and the numerous conservative advocacy organizations they control and finance.
Like Thomas, Justice Samuel Alito was a guest of the Koch brothers at several of their retreats. He should also recuse himself, on same sex marriage.
This tactic by the Foundation for Moral Law reveals its fear that the Supreme Court will probably rule that the constitution recognizes marriage equality, under the same reasoning that was used to end state prohibitions on inter-racial marriages. As is the case with elections, when conservatives lose, they claim passionate concern for the integrity of a process, while trying to rig it in their favor.
Former contributor.
