Peter Sprigg is Senior Fellow for Family Policy Studies at Family Research Council. This article appeared in Townhall.com on February 15, 2015.
Most of the media is blaming the current chaos in Alabama over whether same-sex couples will or will not be issued marriage licenses on Judge Roy Moore, Chief Justice of the Alabama Supreme Court.
However, it really should be laid at the feet of U.S. District Court Judge Callie V. S. Granade (pronounced, according to National Public Radio, like “grenade”). It was Granade’s January 23 decision to blow up Alabama’s one-man-one-woman definition of marriage which set events in motion.
The decision by Granade (a George W. Bush appointee) is startling to read. For one thing, it is extraordinarily short—only 10 pages. By contrast, the District Court decision in Oregon’s case was 26 pages; in Indiana, 36; in Pennsylvania, 39; in Idaho, 57; in Oklahoma, 68. She reminds me of a college student who, with a whole semester to prepare her honors thesis, instead throws it together by pulling an all-nighter the day before it’s due. Don’t do your best—do the minimum you can to get by. Essentially, Granade points to the other federal judges who have asserted a constitutional right to homosexual marriage and says, “Yeah—what they said!”
Another thing startling about the case—which makes her judicial activism even more obvious—is that it did not begin as a marriage case at all. It was actually an adoption case, in which one lesbian sought to adopt her partner’s child, but was prevented from doing so by Alabama’s law limiting second-parent adoption to a “spouse.” So even if Judge Granade believed the plaintiffs’ had suffered an unconstitutional injury, she could have remedied it by ordering Alabama to permit the adoption of this one child. She might even have struck down the state’s adoption law. Instead, she used this adoption case as a wedge in an attempt to redefine marriage for the entire state.
Given the brevity of her opinion, Judge Granade’s actual constitutional and legal analysis is extraordinarily thin. She asserts that the Alabama marriage law and voter-approved state constitutional amendment are “unconstitutional on Equal Protection and Due Process grounds.”
However, her decision contains virtually no Equal Protection analysis—except to note that, under Eleventh Circuit precedent which binds her, classifications based on “sexual orientation” (which the marriage laws are not—but more on that in a moment) are not subject to heightened scrutiny. This would normally mean that they must survive only the very lenient test of whether there is any conceivable rational basis for them.
Granade, however, jumps right to subjecting the Alabama marriage laws to “strict scrutiny,” on the theory that they interfere with a “fundamental right” protected under the Due Process clause.
The Supreme Court has indeed established precedent that there is a “fundamental right to marry” under the Due Process clause. The mistake that Granade makes (and the fact that many other federal judges have made the same mistake does not make it any less mistaken) is in thinking that the lesbian plaintiffs’ “fundamental right to marry” had been infringed by the state.
Both of these individual plaintiffs were entirely free to marry in Alabama—provided that they found a suitable spouse under the law, namely, someone not a child, not a close blood relative, not already currently married to someone else, and not of the same sex.
In a unanimous 1997 decision finding that there is no constitutional right to assisted suicide (Washington v. Glucksberg), the Supreme Court articulated a clear test for the recognition of a new “fundamental right.” First, there must be “a ‘careful description’ of the asserted fundamental liberty interest.” In this case, the “asserted” interest is not merely the “right to marry,” but the right to marry a person of the same sex. Second, Chief Justice Rehnquist wrote, “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation's history and tradition.’” It is obvious that same-sex “marriage” an innovation scarcely more than a decade old, is not “deeply rooted in this Nation’s history and tradition.”
Yet Judge Granade did not even mentionthe Glucksberg test in her opinion. This leads me to propose a new test of my own—call it “the ‘Glucksberg test’ test.” If a judge asserts that same-sex couples have a “fundamental right” to marry under the U.S. Constitution, yet fails to even mention the Glucksberg test, you can be certain that judge has not undertaken any serious constitutional analysis.
Such a judge is not judging, but legislating from the bench in an effort to impose his or her own preferred socio-political outcome.
This is not only judicial activism—it is judicial tyranny.