Alabama’s Chief Justice Roy Moore is still leading the resistance against marriage equality, and his newest battle tactic is to insist that two of the more liberal members of the Supreme Court shouldn’t have a say when the matter is taken up next month. Since both Justice Elena Kagan and Justice Ruth Bader Ginsburg have actually performed same-sex marriages, he said, their position on marriage equality is known — and they should recuse themselves from the vote.
Speaking to AL.com, Moore said that the pair of justices should abstain from voting on the issue, since, he says, “Their actions speak louder than their words.”
If already having a position on an issue prevented a justice from hearing arguments and voting on a ruling, Justices Kagan and Ginsburg wouldn’t be the only ones holding their tongues. Justice Antonin Scalia has made his position quite clear as well. Mother Jones documents some of the things he’s expressed about same-sex relationships, comparing bans on gay sex to laws against murder and suggesting that banning same-sex relationships is no different than banning bestiality and child porn.
Yes, Scalia argued, not just for bans on marriage equality, but in defense of laws actually banning “homosexual behavior.”
Justice Clarence Thomas has also already made his position clear, in his February dissent to the court’s decision not to stay a ruling allowing marriage equality to go forward in Alabama. According to Think Progress, Scalia hints that there are enough votes on marriage equality for his own position, that same-sex couples are not denied equal rights when denied the opportunity to marry, would be overruled.
However, Chief Justice Roy Moore isn’t arguing that those justices who have made their positions clear, and share his stance on marriage equality, should abstain from the vote. He’s only calling for justices who are expected to vote in favor of equality to abstain.
There’s no evidence that this is truly about Moore wanting justices who already have strong opinions to recuse themselves from a high-profile case. Instead, it’s about Moore demanding that those members of the Supreme Court who disagree with him simply keep quiet. Of course, if, as Justice Thomas seems to have suggested, there are five votes in favor of marriage equality, silencing two of them would shift the vote enough to change the outcome.
Moore has announced that, if the Supreme Court does rule in favor of marriage equality, he will recuse himself from any cases that involve same-sex marriage.
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