Posted on 02/15/2015 8:43:26 AM PST by Kaslin
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.
Love the headline!
Perhaps the courts could repeal the law of gravity so we might all fly around unfettered?
VERY WELL WRITTEN
True life often is stranger than fiction.
Welcome to Post-Constitutional America.
No longer do the People decide the laws.
Instead, unelected Judges and a renegade President issue edits.
It’s time to think about how to live in such a country.
Perfect headline since the name is pronounced grenade
Yes, Gravity is so unfair!
“Welcome to Post-Constitutional America.
No longer do the People decide the laws.
Instead, unelected Judges and a renegade President issue edits.”
This has been the case for a very long time, at least since they “expanded” the commerce clause to cover anything imaginable back in the early twentieth century.
Romans 1:..
22 Although they claimed to be wise, they became fools.. 25 They exchanged the truth about God for a lie, and worshiped and served created things rather than the Creator—who is forever praised. Amen.
26 Because of this, God gave them over to shameful lusts. Even their women exchanged natural sexual relations for unnatural ones. 27 In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error.
28 Furthermore, just as they did not think it worthwhile to retain the knowledge of God, so God gave them over to a depraved mind, so that they do what ought not to be done. 29 They have become filled with every kind of wickedness, evil, greed and depravity. They are full of envy, murder, strife, deceit and malice. They are gossips, 30 slanderers, God-haters, insolent, arrogant and boastful; they invent ways of doing evil; they disobey their parents; 31 they have no understanding, no fidelity, no love, no mercy.
Note also that Romans 1:32 points out that those who approve of such conduct are just as guilty as those who engage in it.
No more Bush appointees. We dodged a bullet in getting Justice Alito over his prior nominee.
Nice heading..
As I always say, what’s happening today is bible prophecy. It won’t get better, it will only get worse.
It really isn’t “marriage”.....it’s simply legalizing sodomy.
Indeed. Am waiting impatiently! Look up!
You are correct in every respect.
I hear Panama in nice.
If I can only find a decent paying job there. Need to go before the wall is put up to keep us in.
Indeed and you are so right.
Jesus Christ: You can’t impeach Him and He ain’t gonna resign.
Yep. The change/transformation has been constant and has usually been gradual, especially so since the 1970s and legalized abortion.
However, there is a sudden change in the near future, when the accumulation of all the small, incremental forces causes a catastrophic failure in all we've come to depend upon.
Nothing lasts forever, especially not a dumbed down, tech dependent population that requires the skill and labor of others to satisfy their most basic needs.
Be ready for that world.
Conservatives have criticized liberal judges for writing lengthy opinions; here we have one criticizing an apparently liberal judge for writing one that is too short.
Does Sprigg really think that SCOTUS will overturn based on Glucksberg?
To my mind, a fundamental right is one that actually appears in the Constitution.
I am not pre mil. I am post mil.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.