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 Granades January 23 decision to blow up Alabamas 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 shortonly 10 pages. By contrast, the District Court decision in Oregons 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 its due. Dont do your bestdo 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, Yeahwhat they said!
Another thing startling about the casewhich makes her judicial activism even more obviousis 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 partners child, but was prevented from doing so by Alabamas 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 states 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 Granades 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 analysisexcept to note that, under Eleventh Circuit precedent which binds her, classifications based on sexual orientation (which the marriage laws are notbut 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 Alabamaprovided 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 Nations 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 owncall 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 activismit is judicial tyranny.
Excellent take down of the judge, but it’s all but over now. The only question is whether or not Roberts joins the four liberals and Kennedy to make it a 6-3 decision imposing recognition of gay marriage on the entire nation.
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