Is Judge Granade scared of Alabama's pushback on marriage?

May 29, 2015

Recent news from Alabama affirms that states can still have a voice and push back against efforts by the federal government to override them on marriage -- in this case by resisting aggressive, unlawful assumptions of authority by federal courts.

U.S. District Court Judge Callie Granade recently issued another order barring certain probate judges from denying same sex marriage licenses, but stayed her order pending the Supreme Court's imminent decision on same sex marriage.

Could Judge Granade's stay be standard operating procedure given the upcoming decision? Possibly.

Could it also be that she stayed the decision because she is afraid of being again rebuked by the Alabama Supreme Court and receiving proper, lawful pushback? Also, possibly.

In this recent order, Judge Granade also still pretends that the Supremacy Clause requires lower federal court decisions be recognized as authoritative federal law, but this notion is nowhere near as settled as she makes it out to be. It could be that she knows this and doesn't want to be exposed should the state of Alabama again lawfully defy her reasoning, so she has protected herself by staying her ruling.

In response to her ruling earlier this year, Alabama Chief Justice Roy Moore issued a two-part memorandum -- the first part explaining who has authority to give orders to probate judges under Alabama law, and the second part explaining that probate judges are free independently to determine whether state laws and constitutional provisions violate the federal Constitution. For while the Supremacy Clause says that the Constitution is the "supreme law of the land," it does not wholly place the power to interpret the federal Constitution with lower federal courts -- a creation of Congress under Article III, Section 1, of the Constitution.

While some have dismissed Chief Justice Moore's second argument as outmoded and long settled, their claims do not bear up under closer scrutiny. While his opponents claim to highlight his "defiance" of the federal government in the present context by drawing comparisons to civil-rights era race issues, their comparison is inapt, for the situations toward which they point involve Supreme Court rulings and clear federal law.

In this regard, critics of Chief Justice Moore's position also have to consider the following: Imagine that after the Supreme Court's Dred Scott ruling, a federal district court issues an order barring a northern state from enforcing a law providing that a slave voluntarily taken into that state becomes free. Are state officials required to comply with this federal court order? If you answer "no" to this question, you would be going even further than Chief Justice Moore's argument that state officials can properly ignore the precedential effect of lower federal court decisions they regard as lacking a constitutional basis.

Opponents of this position -- a group which appears to include Judge Granade -- have failed to grapple with the fact that state court judges are not bound by and are not required to give precedential effect to lower federal court rulings on the federal Constitution. Rather, state court judges remain free to determine the meaning of the federal Constitution themselves. In so pointing out, Chief Justice Moore has not argued that state judges can ignore the Supremacy Clause or defy a court order with proper jurisdiction over them -- rather, he is merely pointing out that lower federal court rulings do not clearly bind state court judges as to the meaning of the federal Constitution.

Legal experts like Professors Amanda Frost and Howard Wasserman have defended Chief Justice Moore's views on the legal process at play here. Even such would-be critics as Emily Bazelon, writing in the New York Times, admit his position (that one federal district judge does not have the final say over Alabama) is well-grounded.

When both the states and lower federal courts have the authority to interpret the federal Constitution, conflicting interpretations may arise. But one thing is clear: those who designed our Constitution clearly intended that total power of its interpretation would not lie with either the states or federal government.

These developments surely were not missed by Judge Granade. While they may not be the reason she stayed her latest order, they may have also been in the back of her mind as she made that decision. Certainly, lawful resistance by states makes it more difficult to lower federal judges and the federal government to trump opponents of their agenda on marriage. This may have been just enough of a headache -- a perfectly lawful headache -- for Judge Granade that she preferred to avoid the issue at this point.

This should also serve as a lesson to those states which already have shown undue deference to lower federal court rulings or believe there is no way they can resist the unlawful assumptions of power by lower federal courts and the federal government regarding marriage.