After Photo Emerges, Alito, Kavanaugh Urged to Recuse From LGBTQ Cases

An activist group is calling for conservative Supreme Court Justices Brett Kavanaugh and Samuel Alito to recuse themselves from LGBTQ rights cases after the publication of a photo of them with anti-LGBTQ leader Brian Brown.

Brown, president of the National Organization for Marriage and the International Organization for the Family, posted the photo on Twitter October 29. Others pictured include Roman Catholic Cardinal Gerhard Muller and Princess Gloria von Thurn und Taxis, a conservative Catholic activist from Germany. Kavanaugh and Alito had attended an event featuring Muller in Washington, D.C., cosponsored by IOF, a few days earlier.

NOM has long fought marriage equality, and both that organization and IOF are opposed to LGBTQ rights in general. NOM has filed a friend-of-the-court brief in the cases pending before the court dealing with anti-LGBTQ workplace discrimination; it argued that federal law does not prohibit such discrimination. The court heard oral arguments in the cases October 8 but is not expected to issue a ruling until next spring.

Kavanaugh and Alito's appearance with Brown raises "serious concerns about your impartiality" in those cases, Aaron Belkin, a longtime LGBTQ rights activist and director of Take Back the Courts, a group advocating for Supreme Court reform, wrote in a letter directed to the two justices and copying Chief Justice John Roberts. Dated Wednesday, it is posted on Take Back the Courts' website.

"The successful and unprecedented efforts by political branches to manipulate the size of the court for partisan purposes and your behavior, Justice Kavanaugh, during your confirmation hearings, have only deepened concerns about the politicization of the court," Belkin wrote. "Your decision to meet privately with an activist who has filed amicus briefs with the court in three pending cases seems to confirm the worst fears of his critics."

He noted that the Code of Conduct for Federal Judges "states that judges must take care to avoid the appearance of improper influence." This code does not apply to the Supreme Court, but nonetheless, "each justice has an ethical duty to decide for themselves if recusal is necessary to avoid bias or the appearance of bias," Belkin continued. "In order to meet this duty, you must recuse yourselves from the three cases currently before the court for which the National Organization for Marriage has filed briefs. The fact that the Supreme Court does not have formal ethics rules is no excuse for behaving unethically."

"Justices Kavanaugh's and Alito's inappropriate conduct underscores the importance of judicial reform including expanding the Court," Belkin told the blog Law & Crime via email. "The Justices seem to be flaunting that they have the power to disregard ethics, decency and fairness, and there's nothing anyone can do about it. But I'm not so sure that they're right."

There have been calls for liberal Supreme Court justices to recuse themselves from certain cases as well. In 2015, as the court was considering marriage equality, the virulently anti-LGBTQ American Family Association demanded that Ruth Bader Ginsburg and Elena Kagan recuse themselves from the case because both had officiated marriage ceremonies for same-sex couples. They did not recuse themselves, however, and they were in the five-justice majority that ruled for nationwide marriage equality in June of that year. Alito was one of four justices dissenting, and Kavanaugh was not yet on the court.

There's no record of a response from Kavanaugh and Alito to Belkin's letter as of yet.