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Within the last couple of years of our nation’s 239-year history, left-wing lawyers clothed in black robes have imposed their twisted view of law and morality on the country with breathtaking speed. As recently as 2010, over two-thirds of these United States had banned homosexual marriage, with Americans overwhelmingly rejecting same-sex marriage at the ballot box. Incredibly, federal judges have arrogantly reversed the decisions of voters in most of those states, leaving just five states nationwide with bans in place, undisturbed by court ruling. (There are 13 states in which homosexual marriage is still banned. However, for eight of those states, courts have overturned the bans but have stayed their reversal until appeals have run.)
And now, in Obergefell v. Hodges, the U.S. Supreme Court is poised to void the few remaining pro-traditional marriage laws, nationwide.
How did a country, founded on religious freedom by largely God-fearing, Bible-reading patriots reach this point? First, despite the federal judiciary’s near full-body embrace of homosexual marriage, such sexual couplings are not equally accepted by ordinary Americans. To be sure, attitudes are changing – in part due to the increasing inclination to look to “the civil law” rather than God for morality – but the American people by and large reject the idea that any marriage other than that of one man to one woman is a good idea.
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The elites have a completely different view. All one need do is look at Hollywood’s hyper-evangelical effort to indoctrinate television viewers and moviegoers through the ubiquitous insertion of out-of-place subplots portraying loving, happy homosexuals. One can’t even enjoy watching the apocalyptic showdown between remnants of the human race and hordes of zombies in AMC’s blockbuster The Walking Dead without being interrupted by homosexual passion.
The news media plays the same game, with its unrelenting agenda to force cultural acceptance of homosexual marriage. From the predictable prophets of the left, to those who we had once thought were on the right like Fox’s Shepard Smith, almost all champion homosexuality and suggest no qualitative or moral difference between heterosexual and same-sex marriage. “Family friendly” drag queen contests on military posts sponsored by federal dollars are celebrated. Families with children raised by transgender, bisexual, or homosexual parents are presented as normal. Counseling to address gender identity issues or same-sex attraction is trashed as unscientific and hateful – even, in some places like California, outlawed altogether.
Political elites – both Democrats and Republicans – are no different. Republicans like Majority Leader McConnell and Speaker Boehner will occasionally throw a rhetorical bone to their constituents on the issue, but they’ll never direct real political capital toward efforts to promote traditional marriage or to preserve states’ rights on the issue. Looking at the number of homosexuals working as congressional staff, the acceptance of federal efforts to celebrate homosexuality, and other telling factors, all reflect where the political elites are personally on this issue. And their wholesale silence over the impending Supreme Court decision on homosexual marriage is especially telling.
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In the face of a population that has historically embraced traditional marriage and rejected same-sex relationships, what has empowered the homosexual-pushing political and media elites to such an extent that allies of true marriage are running for cover?
Without a doubt, there are a number of enablers; but the federal judiciary is a central driver. As other articles (Part I, Part II, Part III, Part IV, Part V, and Part VI) in the “Building the Resistance to Same-Sex Marriage” series have convincingly explained, the federal judiciary has largely abandoned any pretext of following the drafters’ intent with respect to the Constitution and its Amendments as applied to same-sex marriage. Apparently, these judges believe the oath they have taken requires no deference to the Constitution’s plain meaning.
Granted, some judges believe that they are compelled to follow the dictates of superior (higher) courts, even if those decisions violate the written Constitution. This is a poor excuse, as the judge’s oath is to the Constitution, not to some twisted interpretation of it. While indefensible, this approach stands in contrast to the illegitimacy of other members of the federal judiciary who spin dozens of pages of judicial decisions, ginning up creative and largely illogical reasons for why constitutional language – drafted when homosexuality was criminalized throughout the United States – somehow now compels protection of same-sex marriage and sodomy.
What is even more troublesome are those Justices who have such zeal for the homosexual agenda that they have made supportive public statements and have even voluntarily officiated at homosexual marriages – despite knowing that the question of homosexual marriage would be presented before them for future decision.
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There is a Code of Conduct under which federal judges – including U.S. Supreme Court Justices – are bound to comply. (Justice Kennedy stated on March 14, 2013 that he and the other justices of the Supreme Court consider the Code of Conduct to be “absolutely binding.”) Canon 3A(6) of that Code of Conduct requires that a judge “not make public comment on the merits of a matter pending or impending in any court.” Canon 2A of the same Code provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Finally, a federal statute, 28 U.S.C. sec. 455(a), further mandates that a federal judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
U.S. Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan have violated these standards. Both justices have presided over same-sex weddings despite their knowledge of pending federal homosexual marriage cases. Justice Ginsburg has been especially vocal, stating in August 2013 regarding an impending homosexual marriage she was presiding over in Washington, D.C., that “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 a marriage relationship.”
Again, this past February, Justice Ginsburg said that it “would not take a large adjustment” for Americans to accept homosexual marriage:
“The change in people’s attitudes on that issue has been enormous. In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor – we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”
In response to these pro-homosexual marriage statements and actions, a number of conservative groups contended that Justice Ginsburg’s bias on the issue had been publicly and conclusively established, and demanded that she not participate in Obergefell v. Hodges. The Foundation for Moral Law, which filed an amicus brief in support of traditional marriage, also filed a thoughtful Motion for Recusal in the U.S. Supreme Court in April; but the motion has yet to appear on the Court’s Docket Sheet for the case. Instead, ex-ACLU attorney Justice Ginsburg doubled-down, marrying two men in New York City just last month. According to the New York Times, the Justice made a bit of a spectacle of her support for same-sex marriage during this recent ceremony:
“[T]he most glittering moment for the crowd came during the ceremony. With a sly look and special emphasis on the word “Constitution,” Justice Ginsburg said that she was pronouncing two men married by the powers vested in her by the Constitution of the United States.
“No one was sure if she was emphasizing her own beliefs or giving a hint to the outcome of the case the Supreme Court is considering whether to decide if same-sex marriage is constitutional.
“But the guests began applauding loudly, delighted either way. Justice Ginsburg, who has officiated at same-sex weddings in the past, also seemed delighted . . . Justice Ginsburg [later] reigned as belle of the same-sex ball.”
How Justice Ginsburg – whom the left describes as “brilliant” – could think that such actions and past statements would not raise obvious questions of partiality in a case involving the U.S. Constitution and homosexual marriage is especially troubling. And yet she has aggressively continued her participation in Obergefell v. Hodges as reflected by her active engagement in the case’s oral argument just several weeks ago.
Similarly, Justice Kagan’s voluntary officiation over a homosexual marriage (involving her former law clerk) – although arguably less public than her colleague’s antics – also causes her “impartiality [to] reasonably be questioned.”
In 1988, the U.S. Supreme Court in Liljeberg v. Health Servs. Acquisition Corp (486 U.S. 847, 869-870) quoted Justice Frankfurter, explaining that the “‘guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.'” Here, appearance and fact are consonant: Justices Ginsburg and Kagan are vested in their same-sex marriage positions. This partiality also raises real concerns of whether the litigants in Obergefell v. Hodges can receive due process from those who have demonstrated bias.
So what can be done about Justices who ignore the ethical standards in violation of the judicial Code of Conduct and who violate a federal statute barring their participation in a “proceeding in which [their] impartiality might reasonably be questioned”? Obviously, there is no court above the U.S. Supreme Court from which discipline may be applied. Nor is there a mechanism by which other justices can vote a biased colleague off a case. Internal policing doesn’t appear to be working in Obergefell v. Hodges, even though a number of justices have previously disqualified themselves from cases in which they have vested interests or have made public comments.
The only answer for justices who blatantly violate their Code of Conduct, federal law, and their oaths of office is impeachment and removal. Regrettably, a Republican-controlled Congress, more concerned about rescuing Obamacare than resisting yet another activist attack on the Constitution, offers little hope. Unless and until Members of Congress demonstrate real fidelity to the U.S. Constitution, no Ruling Class politicos in either party can be trusted–and none should be supported–by those who seek to restore liberty to our nation.
Joe Miller graduated from West Point in the top 1 percent of the Class of 1989. He then served as an armor officer with the 1st Infantry Division, seeing combat in Desert Storm and receiving the Bronze Star and Meritorious Service Medal. After active duty, Joe attended Yale Law School where he earned his Juris Doctorate. He also holds a Master’s Degree in Economics from the University of Alaska. Following his move to Alaska at the age of 30, he was appointed as a State Magistrate (the youngest then serving in Alaska), then appointed an Acting State District Court Judge and, shortly thereafter, U.S. Magistrate Judge in Fairbanks. Again, he had the distinction of being the youngest then serving in that federal position, in the nation. On August 24, 2010, he defeated incumbent Senator Lisa Murkowski in the Alaskan Republican Primary, only to lose a contentious three-way general election. Joe is currently the President of Restoring Liberty, is the radio host of the daily Joe Miller Show, and practices law. He and his wife Kathleen have been married for 23 years and live with their children in Fairbanks, Alaska.
This article is part of a series on “Building Resistance to Same-Sex Marriage.” To enable this important work to continue, contributions may be made to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.
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