Democratic state House lawmakers in Louisiana were caught by surprise on Monday when their Republican counterparts pushed through a resolution calling for Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan to recuse themselves from a case involving same-sex marriage bans.
The New Orleans Times-Picayune reported that Concurrent Resolution 85 went through without a single opposing vote. The non-binding resolution will now go to the state Senate.
“I know I didn’t pay attention,” state Rep. Karen St. Germain said. “Usually somebody does.”
Louisiana’s law against marriage equality is one of the four state bans being considered by the high court in the Obergefell v. Hodges case. The resolution argued that Ginsburg and Kagan have “engaged in public conduct” suggesting that they would be likely to rule that such laws are unconstitutional.
“Justices Ginsberg and Kagan have each officiated highly publicized same-sex 19 marriages that would potentially be affected by the ruling in these cases,” it stated. “Therefore, justices thus may have a predisposition to vote in these cases to validate the marriages they have performed.”
The resolution went through a day before Ginsburg referenced the state’s “Head and Master Rule” during oral arguments. Louisiana was the last state to repeal such statutes, which gave husbands the final word over jointly-owned property without requiring consent from their wives.
“Marriage today is not what it was under the common law tradition, under the civil law tradition,” she said. “Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court’s decision in 1982, when Louisiana’s Head and Master Rule was struck down. Would that be a choice that state should be allowed to have? To cling to marriage the way it once was?”
According to Media Matters, the push to bar Kagan and Ginsburg from the case originated with the anti-LGBT American Family Association in January. Fox News host Bill O’Reilly did not credit the group while pushing the same message on his show last week, saying, “I’m shocked they haven’t done it already.”
But many conservatives have seemingly failed to hold Justice Antonin Scalia to the same standard, despite a history of statements that would indicate he does not believe in marriage rights for same-sex couples.