Tags: Gay Marriage | Supreme Court | Supreme Court | Kagan | Ginsburg | gay marriage | not necessary

Experts: Justices Don't Need to Bow Out of Gay Marriage Decision

By    |   Wednesday, 04 Mar 2015 07:11 PM

Despite calls from socially conservative groups on Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg to recuse themselves from same-sex marriage cases because they have both officiated at gay weddings, legal experts say it's not necessary.

University of Pennsylvania Law School professor Kermit Roosevelt told The Christian Post that it's both unrealistic an unhealthy to expect that judges will not have opinions on the issues they must decide upon.

"There's a widespread misperception that it's somehow improper for justices to have opinions about legal issues — whether there's a national right to same-sex marriage, whether there's a right to abortion, whether Congress can require people to buy health insurance — before they hear cases about those issues," Roosevelt said.

"We select justices because they are legal experts; of course they will have opinions on those issues. We can ask them to keep an open mind, but we can't ask them to have an empty head, and we wouldn't want them to, either," the law professor explained.

"It's wrong for judges to prejudge factual questions before hearing evidence, but they should have pre-existing opinions about legal issues," he added.

According to Kara Loewentheil of Columbia Law School, "the justices recuse themselves most commonly when they have a financial stake in the litigation or issues closely associated with the litigation, when they have close relatives who are parties or lawyers involved in the case."

But Loewentheil says that in this case there "is no reason for Kagan or Ginsburg to recuse themselves."

"The justices in question performed an act, at the request of a third-party, which was lawful in the state where and when it was performed," she explained.

"They have no financial interest or other inappropriate stake in the outcome in the case, and have no obligation to recuse themselves."

Several groups including the National Organization for Marriage (NOM), the American Family Association, and the Coalition of African-American Pastors, have called on Kagan and Ginsburg to recuse themselves from the upcoming April hearing on state bans on same-sex marriage.

NOM has launched a petition specifically arguing that Ginsburg has disqualified herself from the same-sex marriage case because of recent comments she has made showing her bias, as well.

"In light of these recent and deeply disturbing actions foreshadowing her intended ruling, I am demanding that Justice Ginsburg follow the law and judicial ethics, and disqualify herself from hearing the case pending before the court relating to same-sex 'marriage,'" the petition reads.

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Despite calls from socially conservative groups on Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg to recuse themselves from same-sex marriage cases because they have both officiated at gay weddings, legal experts say it's not necessary.
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Wednesday, 04 Mar 2015 07:11 PM
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