Clarence Thomas Is Model for Gay Marriage Case: Ann Woolner

Oh, for the days when men were men and women were wives. How much simpler it was when the man of the house sallied forth into the world and the little woman contented herself with home, hearth and family (whether she wanted to or not).

However stifling, strict gender roles made things more orderly. Take for example the ticklish situation created when judges have spouses who, in their work lives, take public positions on legal issues.

Conservative forces tried and failed to persuade Stephen Reinhardt, one of the most liberal judges on the federal bench, to remove himself from a California gay marriage case, scheduled for argument Monday before a three judge panel, including him.

The problem is Reinhardt’s wife, Ramona Ripston, the anti- gay-marriage crowd says in a court paper filed this week.

Ripston has labored for years as executive director of the American Civil Liberties Union of Southern California. Her group has no direct role in the lawsuit Reinhardt is set to consider. It is neither plaintiff nor defendant nor legal counsel.

If it had been, Reinhardt would have disqualified himself immediately, as that has been his long-running policy.

But Ripston did attend a long-ago meeting where the possibility of filing this suit was hashed out, according to the court brief, which cites a magazine article.

State Litigation

Plus, her organization, based in Los Angeles, sought a role in the case. Its lawyers were among those representing a gay parenting group asking to join the litigation as a plaintiff. And the ACLU of Southern California also signed on to a friend of the court brief, one of many filed in the lawsuit.

All this took place on the trial level, before the case got to the 9th U.S. Circuit Court of Appeals, where Reinhardt sits. The Southern California ACLU has no role in the appellate litigation.

And yet, it was deeply involved in a similar case that went through state courts earlier.

Before deciding whether any of that requires Reinhardt to step down, put aside any ideological bias you may harbor. Liberal judges aren’t the only ones whose wives hold visible and powerful posts.

Consider Virginia Thomas, a longtime conservative activist whose husband, Clarence, occupies a seat on the Supreme Court.

She publicly embraces the Tea Party, has worked for various conservative groups, and founded Liberty Central Inc., an information clearinghouse for conservative activism.

Proper Role

“We’ve got to get the Constitution back to a place where it means something,” she told conservative blogger, Ed Morrissey, “or we’re headed for tyranny.”

(Those were my precise thoughts when George W. Bush was president, by the way.)

But is that any way for a Supreme Court justice’s wife to talk?

“I did not give up my First Amendment rights when my husband became a justice of the Supreme Court,” Virginia Thomas told National Public Radio this March.

She’s right.

But does her activism mean her husband should recuse himself from those cases where she or her group has taken a stand?

A memo posted on the Liberty Central Web site that included her name (mistakenly, the group said), called the health-care reform law “unconstitutional.”

Ethical Question

As it happened, Justice Thomas joined his colleagues on Nov. 5 to decide whether the high court should consider an appeal challenging that very law. (They said no.)

Was it ethical for him to participate?

It was. Her activism, even her opinion on a law’s constitutionality, shouldn’t disqualify him from hearing cases.

(Press reports said she had decided to resign her leadership role in Liberty Central, but a spokeswoman for the group told the Los Angeles Times that wasn’t true. The organization’s website still lists her as chief executive officer. The group didn’t respond to messages seeking clarification.)

If Liberty Central had a direct role in a lawsuit before the court, that would be cause for Thomas to recuse from case. Or, if Liberty Central’s major funders had a matter before the court, then Thomas should step down. For that reason, the group should disclose its backers, even though the law doesn’t require it to do so.

But what about Reinhardt and Ripston?

Like Virginia Thomas, she can say whatever she believes about any case, even if her husband may eventually help decide it. But Ripston did more than that. The organization she works for advocated the same cause in a state court that is now being advocated before her husband in federal court.

No Recuse

True, the cases aren’t identical, as the current case claims same-sex marriage is protected by the U.S. Constitution, whereas the earlier one was based on the California state constitution.

Reinhardt said yesterday in an order that he’s not going anywhere.

“I will be able to rule impartially on this appeal, and I will do so,” he wrote.

It seems like a close call to me, and because of that, he should have stepped aside. The link between his wife’s legal work and his judicial work is too close.

The over-arching principle as to when federal judges should recuse themselves is whether the mere appearance of bias is reasonable. That’s according to the federal judiciary’s Code of Conduct and Supreme Court precedent. I think it’s reasonable in Reinhardt’s case.

And yet, the decision to recuse should be a rare one, especially on the Supreme Court. It’s the only court where there’s no replacement if a justice steps off a case.

This much is clear. It may be messy when judges and spouses are both drawn into public life, but order isn’t everything.

(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net

To contact the editor responsible for this column: James Greiff at jgreiff@bloomberg.net

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