As the nation awaits a Supreme Court hearing that many believe will establish a constitutional right for gay and lesbian couples to legally wed, a growing number of conservatives are calling for one of the most liberal justices on the bench to recuse herself.
The National Organization for Marriage (NOM) on Friday became the latest anti-gay marriage group to demand that Justice Ruth Bader Ginsburg bow out of the upcoming hearing on marriage equality. Essentially, the group’s argument is that because the 81-year-old justice has already made her opinion on same-sex marriage clear, she should not be allowed to offer it in what will likely be a landmark civil rights case. But Ginsburg, legal experts note, is far from the only justice to hint at what that case will bring.
Both Ginsburg, and Justice Elena Kagan — another member of the high court’s liberal wing — have presided at weddings for same-sex couples. And in an interview with Bloomberg Business last Wednesday, Ginsburg said that it “would not take a large adjustment” for Americans to get used to nationwide marriage equality.
Those remarks were arguably based on facts. The number of voters who support same-sex marriage has steadily risen in recent years, according to Gallup, with 55% of poll respondents stating last May that they believed marriage between same-sex couples should be recognized as valid by the law.
Brian Brown, however, the president of NOM, said that Ginsburg’s latest comments should disqualify her from participating in the upcoming marriage equality hearing.
“Justice Ginsburg has made it crystal clear that she is going to rule in favor of redefining marriage when these cases come before her,” Brown said in a press release. “We demand that she comply with federal law and disqualify herself as she is required to do. If she refuses, we will ask Congress to act.”
NOM is not the only one calling for Ginsburg to step aside. Similar arguments from marriage equality opponents were flying outside the courthouse last week in Mobile, Alabama, where a federal judge there recently struck down the state’s ban on same-sex nuptials. Last Thursday, after days of confusion over whether that ruling compelled probate judges to actually grant same-sex couples marriage licenses, the same federal judge who overturned the ban declared that her ruling did indeed apply to those judges who issue marriage licenses.
Brit Hume, Fox News Channel’s senior political analyst, also weighed in on Ginsburg’s marriage remarks, saying on Twitter that they represented “amazing impropriety.” And last month, the American Family Association (AFA) called on Ginsburg and Kagan to recuse themselves, as well.
“Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court,” said AFA President Tim Wildmon in a press release last month. “Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it.”
In April, the Supreme Court will hear four consolidated challenges to same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee. The justices are widely expected to rule in favor of same-sex couples hoping to either marry, or have their out-of-state marriages recognized at home. And indeed, it would be hugely surprising if Kagan and Ginsburg came down on the side of the states, given their histories. Both justices ruled against the Defense of Marriage Act (DOMA) — a federal law that defined marriage as an institution between one man and one woman — in 2013, and have more recently allowed marriage equality to go forward in several states.
It would also be hugely surprising, however, if Justices Antonin Scalia and Clarence Thomas found same-sex marriage bans unconstitutional, given their histories. Scalia at a George Washington University event last week said that issues related to gay rights and abortion should be left up to the people, while Thomas last month posed for a photo with anti-marriage equality activists. Both justices were the only two who dissented from a Supreme Court decision last week that allowed Alabama to become the 37th state where gay and lesbian couples could legally marry. And yet, despite making their views on the subject abundantly clear, Scalia and Thomas haven’t heard any calls for their recusal from the upcoming marriage hearing.
Furthermore, there was arguably more of a case to be made for Scalia to recuse himself in last year’s challenge to a Massachusetts law that imposed a 35-foot buffer zone around all abortion clinics, since his wife worked as a “pro-life advocate.” Scalia ended up joining a unanimous opinion that struck down the law. Similarly, Thomas bucked calls for his recusal in challenges to the Affordable Care Act, even though his wife lobbied for the health care law’s repeal.
“It’s completely within the discretion of the specific justice,” Carl Tobias, a law professor at the University of Richmond, told msnbc. Grounds for recusal, he explained, would be if one of the justices had a financial interest or a family member involved in the case.
“I don’t think we’ve seen anything on either side of the [marriage] issue of that magnitude,” said Tobias. “I think it’s going to go forward with the full panel.”
Still, Ginsburg seemed sensitive to criticism she received following the Bloomberg interview. In a one-on-one with msnbc’s Irin Carmon last Friday, Ginsburg declined to answer a question about gay rights.
“I don’t want to talk about what you describe as gay rights,” she said, noting April’s marriage equality hearing. “I don’t want to suggest how the court will decide that case, one way or another.”
Correction: A previous version of this story called The National Organization for Marriage (NOM) an anti-gay group. It has been corrected to say NOM is an anti-gay marriage group.