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COUNTDOWN: Four Days Left to File for SCOTUS Marriage Re-hearing

We have rarely seen anything as disgraceful as this.

There are just five days to go before the July 21 deadline to file for a re-hearing before the US Supreme Court on its recent 5-4 “same-sex marriage” ruling. But chances are bleak that this crucial filing will be done. The cave-in by the GOP has spread to major pro-family organizations.

July 10 meeting in DeWine’s office. Ohio Attorney General Mike DeWine (in red tie) watches Constitutional Law Professor David Forte (far left) discuss the Motion for Recusal filed in April and a Motion for a Re-hearing to be filed immediately. Seated to DeWine’s left is Solicitor General Eric Murphy. Nearly 50 Ohio pro-family activists, citizens, and pastors were also in the room.

As we described in our report last week, the US Supreme Court “same-sex marriage” fight is not completely over. 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 for “same-sex marriage” — were clearly required by federal law to recuse themselves from this case. The 25-day period to file for a re-hearing expires on Tuesday, July 21.

It seemed like a simple and obvious step for our side to take, especially given the outrageous nature of the ruling. So a few days after the June 26 ruling, national pro-family activist Janet Porter called together a few dozen of the top pro-family groups (including MassResistance), activists, and some legal scholars to help get it moving. But we certainly didn’t anticipate this much opposition to this from our “friends”.

Of the four state AGs who are eligible to file the motion (from Ohio, Michigan, Kentucky, and Tennessee) it was decided for various reasons focus on Mike DeWine of Ohio. Several in the group have connections to him.

Pro-family citizens meet with Ohio AG Mike DeWine

DeWine is a Republican with long connections to pro-family people in Ohio. Janet Porter and several in the group are Ohio residents – some of them know DeWine personally. They were able to arrange a meeting last Friday, July 10, in DeWine’s office, to ask him to file for a re-hearing.

Even with short notice, nearly 50 people showed up for the meeting in DeWine’s Columbus office. They included Janet Porter, Constitutional Law Professor David Forte of Cleveland State University, several Ohio activists, and a large group of pastors. Alongside DeWine was the Ohio Solicitor General, Eric Murphy.

Prof. Forte started the meeting by going over the Motion for Recusal filed on April 27 (the day before the Court hearing) and outlining the legal issues for re-hearing the case. DeWine responded by saying he would not be filing for a re-hearing, then opened up the floor for questions and statements from others.

Pro-family activist and Ohio resident Coach Dave Daubenmire attended the meeting. Here’s his account of what happened.

As soon as Prof. Forte was done presenting, Michael DeWine said he had no intentions of re-filing. He said that there’s no chance of winning; it takes 5 justices to agree to do it. He doesn’t want to give false hope to people that this might be reversed. And it’s now time to direct our focus to protecting religious liberty, he said.

The meeting lasted about an hour and 45 minutes. We had thought we were going to just get 15 minutes. He took every question. Some great points were made. One gentleman asked him, “What about his duty to protect children? Because of this ruling, it’s now going to be taught to our children in schools. It’s going to be mandated. And you have an obligation to protect the children.” Another pastor stood up and said, “This is your Moses moment. The Lord has been preparing you. And you’re an elected official. You represent the will of the people who voted on this issue. And the Supreme Court is totally out of bounds and we want you to appeal it on our behalf. ” Then DeWine went through that whole thing again about why he wasn’t going to file it.

And I told him, “Listen, Attorney General DeWine, I was a football coach for 30 years. I didn’t just play the games I thought we would win. We had to play every game on our schedule. And this game’s not over. We have our legal right to an appeal. And on behalf of the concerned Christians and citizens of Ohio we want you to appeal.” This went on for about an hour and 30 minutes. Everybody who had a question and raised their hand, he listened to the question. He didn’t always answer or respond, but he listened.

And then the meeting was done. At the end of the meeting he didn’t say that he wouldn’t do it, but he didn’t say that he would, either. He promised us that he’d read David Forte’s brief and that he would take it under consideration.

How does DeWine know that somebody’s heart [on the Supreme Court] won’t be changed? We need to at least get them on record about this lack of recusal. The people feel robbed.

One attendee told us this:

I believe that DeWine wants to be Governor. And I believe the Republican Party wants the issue to go away, and that he doesn’t want to cross the party bosses. That’s what I think really happened. But who do you serve? I think he serves the [establishment] Republicans and not the citizens of Ohio.

DeWine reacts to flood of emails & calls (from everywhere)

Over the last week, since MassResistance and others have publicized this, DeWine’s office has his office has received a flood of calls and emails from Ohio, across the country, and even foreign countries. (We know that from people who’ve also contacted us.)

It doesn’t appear that the July 10 meeting moved DeWine much. And his “reasons” for not filing are even weaker than before. Here’s a response DeWine’s office emailed to an activist in Maryland on Tuesday, July 14.

Dear Mr. xxxx:

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

I 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.

As you know, the 5-4 majority of the Supreme Court rejected our argument that the definition of marriage should be left to the States and the people.  Before the Court issued its decision, a suggestion for recusal was filed by amicus parties and the individual Justices had the duty to consider their impartiality.  The Justices did not recuse themselves.  Under Supreme Court rules (and specifically Supreme Court Rule 44.1), motions for reconsideration are to be denied unless they have the vote of at least five Justices.

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

Very respectfully yours,

MIKE DEWINE
Ohio Attorney General

Absurd reasoning by DeWine

DeWine’s reasoning in the above email is very disturbing.  (1) He refers to a “suggestion for recusal,” i.e., the Motion for Recusal. But that was not a formal part of the process because it was filed by an outside party – and was most likely ignored by the Justices. And it was submitted the day before the Aril 28 Supreme Court hearing. (2) The fact that a vote to accept a hearing requires five justices not a legitimate reason not to file for a re-hearing. Upon seeing the new evidence, one or more of the majority could change.

Moreover, DeWine’s refusal to file for an appeal arguably constitutes malpractice. There is a universally accepted requirement that a lawyer must zealously fight for his client’s interests, not fold up his tent when it’s inconvenient or unpleasant. The American Bar Association’s Rules of Professional Conduct state, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” This is replicated in just about every other Bar Association code of ethics – even using the word “zealously”. The fact that in 2004 62% of the voters in Ohio passed the state’s Marriage Amendment makes DeWine’s inaction even more outrageous.

What about the other three states eligible to file for a re-hearing?

The Supreme Court case, Obergefell v Hodges, originated in Ohio, but was also a consolidation of cases in Tennessee, Michigan, and Kentucky – the other states in the Sixth Circuit. Thus, the Attorneys General of all four states have standing to act.

Janet Porter’s ad-hoc pro-family activist committee had connections to DeWine, but unfortunately none of them had effective  political connections to any of the other AGs.

We had assumed that that the larger national pro-family groups would also use their considerable influence to push this. We certainly made this known to them. But they all pretty much backed away. One national leader told Janet that this was a “waste of time.” What about the National Organization for Marriage? Not a word. We could name so many others. (There’s certainly a lot of fundraising going on over this ruling.) Or even the Federalist Society, which had the inside track to the legal process in this case?

Here’s what everyone can do now

CALL, EMAIL, TWITTER, or even FAX these AGs.  They need to hear from more people than they’ve ever heard from before:

Demand that they file a “Motion for Rehearing” in the Supreme Court marriage case by next Tuesday, July 21st. The Court must consider the information about how Justices Kagan Ginsburg violated federal law by officiating homosexual “weddings” before the ruling, and not recusing themselves from this case.

OHIO Attorney General Mike DeWine (Republican)
Phone: 800-282-0515
Email: mary.mertz@ohioattorneygeneral.gov  (his assistant)
Twitter: @OhioAG

TENNESSEE Attorney General Herbert Slatery  (Repubican)
Phone 615-741-3491
Fax 615-741-2009
Twitter: @TNattygen  [https://twitter.com/tnattygen]
Chief of Staff: Leigh Ann Apple Jones

MICHIGAN Attorney General Bill Schuette (Republican)
Phone 517-373-1110
Fax 517-373-3042
Email: miag@michigan.gov

KENTUCKY Attorney General Jack Conway (Democrat)
Phone 502-696-5300
Fax  502-564-2894
Email: web site contact page

Why filing this motion for a re-hearing is very important

We’ll repeat what we said earlier. Even if it’s not ultimately 100% successful this is extremely important:

First, it will “officially” bring the issue of Kagan’s and Ginsburg’s failure to recuse themselves (in violation of federal law) into the public spotlight. Right now, it’s relatively buried in ignored motions and various news articles in some conservative media.  And it will reinforce understanding of the overall illegal nature of this ruling.

Second, it spotlights the overall illegitimacy of today’s Supreme Court, its overtly un-Constitutional approach to shaping our laws, and its illegal power grabs far and beyond what was intended by the Founders.

If this opportunity is lost, it will be a terrible indictment to this movement. If only the homosexual movement would give up this easily.