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Two Supreme Court justices appeared in a photo with a hate group leader

Brian Brown
Brian BrownPhoto: AP

Two Supreme Court justices are being urged to recuse themselves from upcoming LGBTQ rights cases after a picture of them with the president of an anti-LGBTQ organization.

Last week, Justices Samuel Alito and Brett Kavanaugh – both conservatives nominated by Republican presidents – appeared in a picture with Brian Brown of the National Organization for Marriage (NOM), which Brown shared on Twitter. Now the liberal organization Take Back the Court is calling on Alito and Kavanaugh to recuse themselves from upcoming LGBTQ cases.

Related: National Organization for Marriage head Brian Brown compares himself to Christ for Easter

NOM is an anti-LGBTQ organization that was set up to fight marriage equality, but also opposes LGBTQ anti-discrimination measures and supports conversion therapy. Brown is also the SPLC designated hate group International Congress of Families, which organizes internationally to oppose LGBTQ equality.

So a photo of Brown with two Supreme Court Justices is troubling, especially since the Court is currently considering three cases related to LGBTQ rights: Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC. NOM filed amicus briefs in those cases, asking the Court to reject LGBTQ equality.

Aaron Belkin of Take Back the Court sent them a letter to ask them to recuse themselves from the cases “light of serious concerns about your impartiality raised by your decision to pose for a photograph for social media” with Brown.

Belkin cited the Code of Conduct for Federal Judges, which says that a judge should not allow “relationships to influence judicial conduct or judgment” and that a judge “should neither lend the prestige of the judicial office to advance” their own private interests.

But he also noted that the Code of Conduct does not apply to the Supreme Court, still asking the justices to hold themselves to that standard recuse themselves.

“The credibility and impartiality of the current Supreme Court is in tatters,” Belkin wrote. “Posing for photographs with the president of an advocacy organization that has filed briefs in matters pending before the court makes a mockery of Chief Justice Roberts’ assertion that a judge’s role is to impartially call balls and strikes.”

“If you refuse to recuse yourselves, this incident will further illustrate the urgent need for structural reform of the Supreme Court in order to restore a Court that understands its role is to protect individual rights and our democracy.”

The Supreme Court could seriously advance or hinder LGBTQ equality in these three cases. Bostock and Zarda are about whether the Civil Rights Act’s ban on discrimination “because of sex” applies to discrimination against gay and bi people, and Harris Funeral Homes is about whether those protections apply to transgender people.

Some federal court have already accepted the argument that discrimination against LGBTQ people necessarily involves discrimination because of sex, and the Supreme Court could fortify those rulings into solid protections, or it could overturn them.

There are five conservative Supreme Court justices and four liberals. If Kavanaugh and Alito recuse themselves, then the balance on those cases would tip to 4-3 in favor of the liberals.

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