The 25-day deadline for filing a motion for a rehearing before the US Supreme Court on the same-sex “marriage” ruling came and went with no action. All four eligible state Attorneys General (Ohio, Michigan, Kentucky, and Tennessee) refused to file for it. And virtually every prominent pro-family group declined to get involved.

As we described in our report on July 9 and our update on July 16, the US Supreme Court “same-sex marriage” fight did not have to end on June 26 when the Obergefell ruling was announced. According to the Court’s published rules, within 25 days of a ruling, a party can ask the Court for a “rehearing” if there are pertinent issues meriting an appeal. The issue of “merit” here is that Justices Kagan and Ginsburg – both of whom ruled to impose “same-sex marriage”—were clearly required by federal law to recuse themselves from this case.

This was an opportunity that we should not have passed up. It was owed to the millions of pro-marriage people who have agonized over this outrageous, unconstitutional ruling. At the very least, officially bringing the recusal issue into the public forum was very important. But it was a battle from the beginning. Few wanted to touch it.

National pro-family activist Janet Porter and her ad-hoc group of a few dozen pro-family groups (including MassResistance), activists, and legal scholars – called together on July 1 – did their best to get one of the eligible AGs simply to file it:

• They inspired a flood of pro-family citizens from across the US (and even several foreign countries!) to contact the four AGs by email and phone.
• Activists met personally in the offices of the Ohio and Michigan AGs, and with aides to the Tennessee and Kentucky AGs.
• An activist friend of Ohio AG Mike DeWine even met with DeWine at his home this past Sunday.
• They did extensive writing on the subject, covered in conservative media. In particular, constitutional attorneys Herbert Titus and William Olson published were published in the following media: CNSNews: Two Critical Factors Necessitate a Rehearing of the Gay Marriage — WND: Constitutional experts call for review of Supremes’ marriage ruling — LifeSite News: Obergefell: the states’ duty to seek rehearing — Future of marriage blog: Obergefell: the states’ duty to seek rehearing.

Sadly, virtually all the national pro-family groups sat on their hands and refused to get involved. One large Washington DC-based group even admitted in an email that they were not supporting this. To our knowledge, only the United States Justice Foundation and the Foundation for Moral Law, both legal aid groups, jumped into the fight.

But in the end, the intimidation factor of the powerful LGBT movement, and its influence in both political parties, won out. From what we were able to determine, all four AGs (three of whom are Republicans) were afraid even to file the papers.

Ohio AG Mike DeWine lamely tried to explain his way out of it. Within hours after the July 21 deadline, DeWine sent the following email to citizens around the country who had pleaded with him to file for the re-hearing over the past few weeks:

July 21, 2015

Dear Concerned Constituent:

Thank you for contacting my office regarding the United States Supreme Court’s decision on same-sex marriage.

I vigorously defended Ohio’s Constitution and statutes in this area at the District Court, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court. Indeed, our advocacy in the Sixth Circuit helped convince that circuit court to depart from the unanimous views of its sister circuits that had recently considered the issue, all of which had found similar laws unconstitutional.

As you know, a 5-4 majority of the Supreme Court ultimately rejected our argument that the definition of marriage should be left to the States and the people. I have carefully considered the points you make. However, I have decided not to file a petition for rehearing based on the ground that Justices Ginsburg and Kagan should have recused themselves because they performed same-sex weddings.

Each Justice decides individually whether to recuse; it is not something that the full Court considers. Yet Justices Ginsburg and Kagan did not recuse themselves, even though they have a duty to consider any conflicts of interest on their own initiative and a suggestion of recusal was filed by amicus parties bringing these grounds to their attention. I know of no Supreme Court precedent in which the full Court has ever overruled an individual Justice’s decision not to recuse. One former Justice wrote that such recusal arguments are not properly addressed to the full Court as grounds for rehearing.

This petition would not only lose, but would be counterproductive. The Court’s denial of the petition could further entrench the decision—especially considering that it could be rejected by a much wider margin than the 5-4 vote itself, perhaps even 9-0. I would not want any potential further ruling here to undermine future efforts in this area, including efforts to protect religious liberty. In that respect, I would note that many of the dissenting opinions highlighted our argument that leaving this decision to Democracy was best for religious liberty. I believe that is where efforts should now be focused.

Again, thank you for contacting my office. If we can ever be of assistance to you in the future, please feel free to contact me.

Very respectfully yours,

MIKE DEWINE

Ohio Attorney General

DeWine’s reasoning is absurd and insulting. From a strategic standpoint, bringing Ginsburg’s and Kagan’s flouting of federal law into the public forum would help illustrate how illegitimate this ruling is. And even if the motion for a rehearing were to lose by 9-0 (very unlikely), to claim it might undermine any “future efforts” in this area is very difficult to believe. It’s a strange reason not to seek legal redress

An attorney has an ethical duty to zealously pursue his client’s interests. Whether a former Justice once had an adverse opinion on the recusal issue (DeWine doesn’t cite a reference) or whether there is no precedent he knows of for including it in a motion is beside the point. It’s legal, so we should use it.

The big retreat continues

For years leading up to the Obergefell ruling, MassResistance has harshly criticized the mainstream pro-family movement and its legal people for their reluctance to use the unpleasant but effective arguments about homosexual behavior, its destructive effects, and morality. Instead, as we’ve all observed, they have only offered “soft” arguments which are easily overpowered.

Now that the ruling is in place, are pro-family leaders talking about stepping up the rhetoric and confronting any efforts to pressure us into submission? Are they stating boldly that we will say whatever we want and act in our faith, no matter how the liberals threaten us? Are we organizing to overturn the onerous LGBT “anti-discrimination” laws that are being used as hammers to enforce their ideology?

No. Instead, the pro-family movement (and its counterpart in the GOP) is talking about seeking protections by filing “religious freedom” legislation and “freedom of speech” legislation – already protected in the Constitution! We’re begging for little islands of protection. In other words: retreat. That’s not going to work, trust us.

We see a possible split in the pro-family movement coming. The well-funded establishment organizations and the soft “church of nice” groups will continue in their current direction. But renegade groups will start being bolder and confronting the new status quo at every turn. They will be criticized from the left and the right, of course. But it’s the only logical way to go at this point.

And you know which side MassResistance is on.

Reprinted with permission from MassResistance.