Judicial Recusal: If Ginsburg and Kagan Are Recused from Marriage Equality Case, Scalia and Thomas Need to, Too

Posted: February 13, 2015 in homosexuality, legal / law
Tags: , , , , , , , , , , , , , , , , , , , , ,

Skeptics or logicians reading the title of this post may recognize an inherent logical fallacy, the tu quoque (literally, “you, too”). This is an informal fallacy which means that the logic is flawed, but that doesn’t mean the conclusion reached is flawed.

Many on the far right wing over the past several months have pointed to the fact that both Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan have presided over same-sex marriage ceremonies. Therefore, the thinking goes, they have pre-judged any same-sex marriage case that would go before the Supreme Court and therefore they should recuse themselves. I wrote about this once before back in 2013. Since I wrote about it before, I’ve generally ignored follow-up WND posts on it.

But, I decided to knock out an easy one today and let you know that it’s still A Thing over at WND, such as this latest story by Bob Unruh quoting the vehemently anti-gay Brian Brown of the National Organization for (straight-only, two-people-only, God-fearing-only) Marriage (NOM) (who also has a WND column): “Calls for Ginsburg to Drop Out of Marriage Case Escalate.”

The issue of judicial recusal is a tricky one. I don’t understand all of the details, but I do know that it is often very much up to the jurist to decide their own conflict of interest and make that determination themselves. I also know that it has long been held that a jurist’s makeup (such as gender, race, sexual orientation, political affiliation) is not grounds for recusal.

Public statements specific to the case? Perhaps. I’m not sure. In which case Ginsburg – who stated this week that people need to get over it, same-sex marriage is going to happen (that’s me paraphrasing) – might be considered as someone who should recuse herself.

That said, if she does, then Clarence Thomas and Antonin Scalia also must recuse themselves. Interesting that I don’t see WND or anyone else on the right pointing this out.

Why do I say this? Because of the tu quote or, “what’s good for the goose is good for the gander.” While Kagan and Ginsburg have both made their general personal position on marriage equality fairly clear, so have Scalia and Thomas. Thomas has been a bit more cagey in his remarks, but as a strict textualist and very much a person seeking to limit the federal government, his opinions have pretty much always sided with restricting individual rights when those are rights not explicitly enumerated in the Constitution. And, he’s seen as one of the most conservative members of the Court and voted against the majority opinion in the decision to strike down anti-sodomy laws. As for Scalia, he has been very outspoken against same-sex marriage and made his opinions on the issue very clear. He has been the primary dissenter in any legalization or striking down of anti-legalization of pro-homosexual issues, including the anti-sodomy laws and DOMA. In addition to that, both Scalia and Thomas frequently associate with vehemently anti-gay groups.

Do I actually think any of these four will recuse themselves? No. But if you call for one side to do so, you must call for the other. But, WND and its ilk want to stack the deck and know that the ruling this year is likely to be a 5/4 decision, but if both Kagan and Ginsburg recuse themselves, then the Court will uphold marriage equality bans.

Surprisingly, at the moment, the top-rated of the 147 comments on the 18-hrs-old WND story is by “BobSF_94117” and he points this out: “Scalia goes around the country offering his opinion on SSM and, far worse, his legal opinion of it.” You have to scroll through many, many other comments (when ranked form “Best” on down) to find one expressing similar ideas.

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