In the lead up to next week's landmark Supreme Court hearings on the constitutionality of marriage equality, Fox News' Bill O'Reilly is amplifying a fringe -- and absurd -- right-wing campaign calling on Justices Ruth Bader Ginsburg and Elana Kagan to recuse themselves because they have officiated same-sex marriages. But these actions, along with Ginsburg's comments noting the American public is rapidly turning against anti-LGBT discrimination, are not grounds for legitimate recusal.
In January, the American Family Association (AFA) -- a notorious anti-gay hate group -- announced a campaign titled, “Kagan and Ginsburg: Recuse Yourselves!” In a statement, the AFA, best known for its infamous anti-gay spokesman Bryan Fischer, called on the justices to recuse themselves ahead of next week's oral arguments before the Supreme Court on same-sex marriage. The group argued that Kagan and Ginsburg “should recuse themselves from making any same-sex marriage decisions because they have both conducted same-sex marriage ceremonies.”
On April 20, Fox legal correspondent Shannon Bream twice reported on “public calls, petition drives, and appeals directly to Justices Ginsburg and Kagan to recuse themselves from hearing next week's case on same-sex marriage.” During Fox News' Special Report, Bream pointed to the justices' past history officiating same-sex weddings and a February 2015 interview during which Ginsburg said that it “would not take a large adjustment” for Americans to get used to nationwide marriage equality. On April 21, Fox News' Bill O'Reilly picked up the argument in his “Is It Legal” segment on The O'Reilly Factor, declaring “these ladies have to recuse themselves,” because "[t]he Supreme Court is supposed to be an incorruptible institution, but reports say Judge Ruth Bader Ginsburg has herself performed three gay marriages, and Justice Elena Kagan, one":
O'Reilly's wildly generalized recusal standard, if taken seriously, would lead to absurd results.
Even conservatives have noted, when defending Justice Antonin Scalia's frequent diatribes and associations on contentious social and policy issues, that the principles of recusal should not extend beyond the details and merits of the specific case at hand. Otherwise, judges would be prohibited from involving themselves with all sorts of topics in American society. Although O'Reilly and his guest, Fox News legal analyst Kimberley Guilfoyle, had no problem questioning the “impartiality” of Ginsburg and Kagan because they were “going out of [their] way to perform same-sex marriages,” they did not do the same for the conservative justices who decline to do so, or who have officiated opposite-sex marriages.
Nor did O'Reilly or Guilfoyle mention Scalia's partiality on marriage equality, even though he has frequently reaffirmed his antipathy toward civil rights protections for LGBT people. In a 2013 interview with New York magazine, Scalia commented, "[m]aybe the world is spinning toward a wider acceptance of homosexual rights, and here's Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement." When asked about his dissent in Lawrence v. Texas, where he wrote that Americans had the right to “protect themselves and their families from a lifestyle that they believe to be immoral and destructive,” Scalia said:
I would write that again. But that's not saying that I personally think it's destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change, it should change democratically, and not at the ukase of a Supreme Court.
Bream's earlier report on the “growing calls” for Ginsburg and Kagan to recuse themselves is also a stretch, at best.
Bream turned to National Review Online contributor Ed Whelan, an anti-gay marriage crusader, to hype the campaign to remove Kagan and Ginsburg ahead of next week's hearings. But Bream failed to report that the campaign is led by the AFA and the National Organization for Marriage (NOM), two fringe anti-gay hate groups whose baseless campaign has gone largely ignored by mainstream media outlets. In fact, a Nexis search found no mainstream media mentions of the campaign since February 2015. Nevertheless, Fox amplified the right-wing campaign against Ginsburg and Kagan, claiming that Ginsburg's comments on same-sex marriage were “drawing the most heat.”