HLSX 15RS-1924 ORIGINAL
2015 Regular Session
HOUSE CONCURRENT RESOL UTION NO. 85
BY REPRESENTATIVES HODGES, HENRY BURNS, GUINN, IVEY, MACK,
SEABAUGH, AND WHITNEY AND SENATORS CROW E AND GUILLORY
JUDGES/SUPREME COURT: Requests that the United States Supreme Court Justices
Ginsburg and Kagan recuse themselves in the case of Obergefell v. Hodges
1 A CONCURRENT RESOL UTION
2To urge and request United States Supreme Court Justices Ruth Bader Ginsberg and Elena
3 Kagan to each recuse themselves from the case of Obergefell v. Hodges, Supreme
4 Court Docket No. 14-556.
5 WHEREAS, in 2004, the Legislature of Louisiana passed House Bill No. 61 of the
62004 Regular Session, which proposed an amendment to the Constitution of Louisiana
7known as the "Defense of Marriage" act and which declared that "marriage in the state of
8Louisiana shall consist only of the union of one man and one woman"; and
9 WHEREAS, in 2004, the people of Louisiana, by a favorable vote of seventy-eight
10percent of Louisiana's electorate, amended the Constitution of Louisiana to declare that
11marriage shall be between one man and one woman; and
12 WHEREAS, the United States Supreme Court has granted writs to review the case
13of Obergefell v. Hodges, supra, which is a case challenging the state of Ohio's defense of
14marriage act; and
15 WHEREAS, Ohio's defense of marriage act, which is similar to Louisiana's defense
16of marriage act, declares that marriage in Ohio shall also be "only a union between one man
17and one woman"; and
18 WHEREAS, Obergefell v. Hodges, supra, has been consolidated with Tanco v.
19Haslam, Supreme Court Docket No. 14-562, a case which challenges Tennessee's defense
20of marriage act; DeBoer v. Snyder, Supreme Court Docket No. 14-571 a case which
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HCR NO. 85
1challenges Michigan's defense of marriage act, and Bourke v. Beshear, Supreme Court
2Docket No. 14-574, a case which challenges Kentucky's defense of marriage act; all four of
3which address the authority of states to retain the historic definition of marriage and whether
4a state must recognize same-sex marriages performed in other states; and
5 WHEREAS, in the cases consolidated in Obergefell v. Hodges, supra, opponents of
6traditional marriage desire to have the United States Supreme Court strike down the laws of
7the respective states and the will of the people of those states, which all declare marriage to
8be between one man and one woman; and
9 WHEREAS, a decision in the case of Obergefell v. Hodges, supra, would arguably
10affect Louisiana's defense of marriage act, which also declares that marriage is between one
11man and one woman; and
12 WHEREAS, United States Supreme Court Justices Ruth Bader Ginsberg and Elena
13Kagan have each engaged in public conduct suggestive to reasonable observers of a
14predisposition to rule in favor of the plaintiffs in the consolidated cases prior to a hearing on
15the merits; and
16 WHEREAS, United States Supreme Court Justices Ruth Bader Ginsberg and Elena
17Kagan have each engaged in public conduct suggestive of bias in all of the following ways:
18 (1) Justices Ginsberg and Kagan have each officiated highly publicized same-sex
19marriages that would potentially be affected by the ruling in these cases; therefore, the
20justices thus may have a predisposition to vote in these cases to validate the marriages they
21have performed. (Robert Barnes, "Ginsberg to Officiate Same-Sex Wedding", Washington
22Post, 8/30/13) and "Supreme Court Justice (Kagan) Performs Her First Same-Sex Wedding",
23CBS News, 9/22/14)
24 (2) Four weeks after the United States Supreme Court granted certiorari in the
25consolidated cases, when asked whether parts of the country might not accept same-sex
26marriage being constitutionalized, Justice Ginsberg answered: "I think it’s doubtful that it
27wouldn’t be accepted. The change in people’s attitudes on that issue has been enormous...
28It would not take a large adjustment..." (Bloomberg News interview, 2/12/15). Although
29recent polling data disputes her conclusion as to the attitudes of the public, these
30extrajudicial comments about a matter pending before the United States Supreme Court
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1violate Canon 3A(6) of the Code of Conduct for United States Judges which states that "A
2judge should not make public comment on the merits of a matter pending or impending in
3any court..."
4 (3) By performing same-sex weddings, Justices Ginsberg and Kagan have each
5improperly lent the prestige of their judicial office to a cause that is now before them for
6decision, in violation of Canon 2B, Code of Conduct for United States Judges.
7 (4) The United States Code, 28 U.S.C. §455(a), mandates that any justice of the
8United States "shall disqualify himself in any proceeding in which his impartiality might
9reasonably be questioned." See Pilla v American Bar Ass’n, 542 F.2d 56, 58 (8th Cir. 1976)
10(explaining that 28 U.S.C. §455(a) applies to members of the U.S. Supreme Court).
11 (5) The United States Code, 28 U.S.C. §455(b)(4), requires recusal when a Supreme
12Court Justice has "any other interest that could be substantially affected by the outcome of
13the proceeding."
14 (6) A reasonable observer would doubt that any judge can objectively sit in
15judgment of her very own acts, actions, or directives; thus, the burden of recusal has been
16fully satisfied under 28 U.S.C. §455.
17 (7) "The guiding consideration is that the administration of justice should reasonably
18appear to be disinterested as well as be so in fact." Liljeberg v. Health Servs. Acquisition
19Corp., 486 U.S. 847, 869-70 (1988) (quoting Public Utilities Comm’n of D. C. v. Pollak, 343
20U.S. 451, 466-67 (1952) (Frankfurter, J., in chambers)).
21 (8) Due process requires a neutral and detached judge. A hearing before a biased
22judge is structural error that is not subject to harmless error analysis. See Tumey v. Ohio,
23273 U.S. 510, 535 (1927) (noting that every litigant has "the right to have an impartial
24judge"). Justices Ginsberg and Kagan have each personally and publicly engaged in
25extrajudicial conduct that dramatically endorses the legal recognition that petitioners seek
26to have nationalized in these consolidated cases. Their vividly demonstrated favorable
27disposition towards the petitioners "is so extreme as to display clear inability to render fair
28judgment." Liteky v. United States, 510 U.S. 540, 551 (1994).
29 (9) Because the resolution of these marriage cases could have an enormous impact
30on the moral and cultural fabric of our nation and our federalism, the strong ethical
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1proscription against allowing a case to be decided under the cloud of an appearance of
2impropriety should apply with particular force.
3 (10) No motion is required to precipitate a judge’s recusal under 28 U.S.C. §455. See
4Davis v. Board of Sch. Comm’rs of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975),
5cert. denied, 425 U.S. 944 (1976); A Charles A. Wright, Arthur R. Miller & Edward H.
6Cooper, Federal Practice & Procedure §3550 (1984). Although the parties, themselves, may
7seek recusal by motion. See Klenske v. Goo, 781 F.2d 1370, 1373 (9
th
Cir. 1986) ("Though
8section 455 is stated in terms of a self-enforcing obligation upon the Judge, it may be
9invoked by a party."); and
10 WHEREAS, the following justices of the United States Supreme Court have recused
11themselves in the following circumstances:
12 (1) Throughout history of the court, dozens of justices have recused themselves in
13the interests of justice. (James J. Sample, "Supreme Court Recusal: From Marbury to the
14Modern Day", Vol. 26 at 95, 2013, The Georgetown Journal of Legal Ethics)
15 (2) Justice Thurgood Marshall recused himself from many dozens of cases while he
16served on the Supreme Court in order to protect the integrity of the court. Justice Marshall
17had been general counsel for the National Association for the Advancement of Colored
18People (NAACP) or the NAACP Legal Defense Fund from 1943 to 1960. Before his
19appointment as a justice on the high court, Marshall's greatest and most significant legal
20victory as a lawyer came when he was the NAACP's general counsel in Brown v. Board of
21Education, 347 U.S. 483 (1954), the case which achieved the noble end of outlawing
22segregation in public education. After Justice Thurgood Marshall was appointed as justice
23to the United States Supreme Court, he routinely recused himself for seventeen years in
24matters which came before the high court where either the NAACP or the NAACP Legal
25Defense Fund were parties to the case. Ross E. Davies, "The Reluctant Recusants: Two
26Parables of Supreme Judicial Disqualification", Vol. 10, No. 1, 79, at 81, George Mason
27Law & Economics Research Paper No. 06-51, (Autumn 2006).
28 (3) Justice Stephen Breyer has consistently recused himself from cases in which his
29brother participated as a lower court judge. Olympic Airways v. Husain, 540 U.S. 644
30(2004), Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002),
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1United States v. Oakland Cannabis Buyers’ Co-op, 532 U.S. 482 (2001), Monsanto Co. v.
2Geertson Seed Farm, 561 U.S. 139 (2010) and Amgen, Inc. v. Connecticut Retirement Plans
3and Trust Funds, 133 S. Ct. 1184 (2013).
4 (4) Justice Antonin Scalia recused himself from a high-profile case concerning the
5constitutionality of the Pledge of Allegiance, based on comments he previously made. Elk
6Grove Unified School District v. Newdow, 542 U.S. 1 (2004).
7 (5) Justice Clarence Thomas recused himself from the highly publicized case
8concerning the admission of women at the Virginia Military Institute, because his son was
9enrolled at the college. See United States v. Virginia, 518 U.S. 515 (1996); and
10 WHEREAS, public comments by Justice Ginsberg in support of same-sex marriage,
11including her published statement that our nation is supposedly ready to accept same-sex
12marriage, reflect a strong opinion about the underlying issue before oral argument has even
13been heard; and
14 WHEREAS, the public conduct of Justices Ginsberg and Kagan has created an
15appearance of partiality in the minds of reasonable observers and is ". . . a serious problem
16that casts disrepute upon the judiciary." (Shaman, Lubet and Alfini, JUDICIAL CONDUCT
17AND ETHICS, page 96 (Michie Law Publishers, 1990); and
18 WHEREAS, given the precedent of recusal established by Justices Breyer, Thurgood
19Marshall, Scalia, Thomas, and many others, the Legislature of Louisiana finds that recusal
20by Justices Ginsberg and Kagan is in order to protect the integrity of this important
21adjudication and to protect the integrity of the United States Supreme Court.
22 THEREFORE, BE IT RESOLVED that the Legislature of Louisiana does hereby
23find that Justices Ruth Bader Ginsberg and Elena Kagan have taken sides on the important
24issue of "same-sex marriage", thus demonstrating an inability to be objective on the matter
25in question, and giving rise to a legal, moral, ethical, and professional duty to withdraw.
26 BE IT FURTHER RESOLVED that, in order to preserve public confidence in the
27integrity of the judicial system, the Legislature of Louisiana does hereby urge and request
28Justices Ruth Bader Ginsberg and Elena Kagan to each recuse themselves from further
29consideration in the matter of Obergefell v. Hodges, U.S. Supreme Court Docket No. 14-556.
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1 BE IT FURTHER RESOLVED that a copy of this Resolution be transmitted to the
2United States Supreme Court Justices Ruth Bader Ginsberg and Elena Kagan and to the
3Clerk of the Supreme Court of the United States of America.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HCR 85 Original 2015 Regular Session Hodges
Requests U.S. Supreme Court Justices Ruth Bader Ginsberg and Elena Kagan recuse
themselves from the case of Obergefell v. Hodges, Supreme Court Docket No. 14-556.
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