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Gay Marriage, Recusal Refusal and U.S. Code Title 28 Section 455


Purnell HeadshotGay Marriage 4

By Purnell

A decent interval has lapsed since the United States Supreme Court decision on gay marriage. It’s possible now to consider the event objectively and dispassionately. Clearly, tolerance, inclusion and diversity have produced profound changes in American culture. Some Americans view the changes as the logical progression toward the expansion of civil rights to last the group of Americans historically excluded from open inclusion into the everyday fabric of the nation’s social mores. Others consider these cultural changes to be the death knell of American political preeminence in the world and a clear indication of the impending loss of traditional familial cohesion. Why, many ask, would the mightiest nation in modern history suddenly be compelled to redefine its fundamental social unit? What underlying force demands atypical social mores and behavioral standards whose long range effects on the core values of the nation are undetermined and essentially inexplicable? The answers to these questions get muddled when new interpretations of constitutional rights are introduced and nearly a generation of agitation for inclusion is thrown into the mix.

From its inception the gay movement has probably known all along that eventually it would have to confront a firmly established Judeo-Christian ethic. After all, the basis for the condemnation of homosexuality is essentially biblical. It’s taken from around 1970 to 2015 for gay rights activists to adopt an ultimate strategy to obtain legal and quasi-social recognition; they would have to summon the courage to openly contest religion, society, the law and the sensibilities of a Judeo-Christian nation. Lead by a potent three pronged combination of a liberal media, suppression of dissent by the restraining power of “political correctness” and the public accusation of bigotry/homophobia for any who opposed their campaign, America capitulated to LGBT demands and now finds itself in uncharted social, political and religious waters. All overt resistance to this new-normal ideology are on the defensive or silenced into irrelevance. For the moment, few traditionalist leaders are courageous enough to openly tout historical family values.

In June of 2015, the U.S. Supreme Court declared same-sex marriage legal in America. To celebrate the Supreme Court’s decision on gay marriage, President Obama permitted the U.S White House to be bathed for a night in the rainbow colors of the LGBT movement. Such was the revelry in that judicial moment, that no apparent thought was given to the impact of what many considered to be an inappropriate gesture, nor the effect such a display might have on a nation still deeply divided over the issue. For LGBT supporters however, it was probably viewed with a sense of euphoric disbelief amped even higher by the realization that the highest court in the land had conferred statutory approval and open validation of gay marital unions. But to 31 states in the Union…the decision was seen as a reprehensible instance of brazen judicial activism at its highest and worst; made even more obnoxious by unusual circumstances surrounding the rendering of the landmark 5-4 decision.


Obscured by the celebrations of the LGBT advocates and by the shocked disbelief of their heterosexual opponents following the June 26, 2015 decision—was that SCOTUS cannot make law. It can only decide if laws are constitutional or unconstitutional by judicial review. Consequently, the nation now has a ruling for which there is no underlying legislation; as only the U.S. Congress is empowered to create law. Even more disturbing was that some members of the court early on openly supported the polarizing issue of gay marriage itself and ignored the clear potential for the absence of impartiality such an inclination suggests. An adequate amount of investigation into this line of inquiry has been conveniently and perplexingly ignored. While the majority opinion justices wrapped themselves in the self-righteous arrogance of legal certainty, the suspicion of impropriety surrounds the case. Only a single news anchorman even mentioned the issue of SCOTU’s possible impartiality. It’s the opinion of some observers that several of these justices should have recused themselves when this case was placed on the docket. Yes…the case should have been heard, but not under what is tantamount to prejudicial circumstances. In fact, if normal court conventions had been followed in this case, the decision handed down might have been 4-3 against homosexual marriage!

Re-cuse:  To disqualify or seek to disqualify (a judge or juror) from participation in the decision in a case, as for personal prejudice against a party or for personal interest in the outcome.

Consider this: justices who officiated at a gay marriage ceremonies prior to the case being accepted by the court should have, by law, recused him/herself since that involvement would surely be a dis-qualifier for the participating jurist. If a sitting jurist were openly or secretly homosexual, jurisprudence would require recusal. The American Family Association, a watchdog group, contends that evidence exists of two Associate Supreme Court Justices officiating gay marriages; see These accusations are seemingly a matter of record and if verified by further investigation could lead to a re-visiting of the verdict. But even more so, in a matter as nationally contentious and emotionally charged as this case was, even a modicum of impropriety should have triggered recusal proceedings. The bottom-line is that the gay marriage Supreme Court decision may be tainted.

This is what the United States Code Title 28 Section 455 mandates under the caption Disqualification of a Justice, Judge or Magistrate Judge…a federal judge “shall disqualify himself (herself) in any proceeding in which his (her) impartiality might reasonably be questioned.” The section also provides that a judge is disqualified “where he (she) has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning a proceeding.” A reasonable person would seemingly conclude from these two excerpts, that a justice officiating at gay marriages prior to judging a gay marriage case would be grounds for recusal!!

In Washington D.C. about 10% of the population are attorneys. Yet none noticed this flaw in a city where litigation is an industry. Meanwhile, the nation has moved on as if the decision was inevitable. If there is an ethics question involved in the court’s gay marriage decision, the court may have succeeded in tarnishing itself irreparably. And there are unintended consequences. No apparent thought was given by the majority Justices to the religious consequences of such a radical legal decision. Faith communities are stunned into paralysis by the court’s decision. Even worse, nearly all church leaders have fallen silent on the matter.

With no viable moral or ethical leadership emerging center-stage to contest the decision, ordinary Americans of deep religious conviction are uncertain of an appropriate response. A definitive response from the Vatican is nonexistent because the Catholic Church is still recovering from its troubles with the legal consequences of cases of homosexual molestation of boys by gay parish priests and other parish officials. So…nothing from the Pope. Nothing from the Baptist Convention. And nothing from the Islamic Community. And not a word from the arch-conservative Mormon Church. It’s a strange response from a Judao-Christian nation. Clerical guardians of the America’s core values have seemingly been reduced to silent observers…mere witnesses to American jurists hurredly propelling the United States into the ranks of a smattering of other Western nations where homosexual marriage is condoned. Essentially, America has been cowered on the gay marriage issue by President Obama’s sanctioning of such unions, militant homosexual activists, the liberal news media, progressive academia and an amoral entertainment industry. June 15th’s gay marriage ruling by the SCOTUS may have lacked impartiality and thus could well be illegal.

In the process of affirming gay marriage, the high court shattered millennia of human social convention and erected a State sanctioned version of marriage untested by the human condition, antithetical to the sensitivities of a majority of Americans and rejected by an overwhelming number of nations on the planet. And as America drifts further and further from its core values…avowed enemies of our nation sharpen their knives and stockpile weapons. Organizations that are hostile to the U.S. are seemingly emboldened by what is viewed as degeneracy, social anarchy and nihilistic tendencies. Undaunted however, progressives continue to forge ahead with an agenda they have managed to have codified into law. No consideration whatsoever is given to any long term effects gay marriage might have upon the vitality, continued well-being or posterity of the nation.

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As predicted though, the same-sex marriage Supreme Court decision poses inherent problems for constitutionally protected religious freedoms; specifically the First Amendment. Associate Supreme Court Justice Scalia in his dissenting opinion warned of unintended consequences that would inevitably create legal ambiguities in the constitutional justice system. Justice Scalia was correct as indicated by recent high profile civil suits concerning the issue.

There is an amusing irony in the resultant chaos. According to Dr. Benjamin Wiker, author of “Worshipping the State: How Liberalism Became Our State Religion,” it was Christianity that arose in the first century B.C. and countered the politically and morally decadent excesses of the Roman Empire. The implication is that the Christian Church, despite its history of imperfections, fought off a thoroughly degenerate Roman way of life and in so doing…rescued the West from a barbaric destiny. Two thousand years later, it appears that the same mission that confronted the early Church is being thrust upon it again; will the people choose the State or the Church as the source of its guiding principles?

For additional information read: “TAKEDOWN: from communists to progressives, how the left has sabotaged family and marriage” Paul Kengor, Ph.D, WND Books, 2015

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