Judicial Tyranny UnMoored

Cultural elites have almost universally affirmed the ongoing efforts of Hon. Callie Granade, United States District Court judge, to prevent any Alabama official from enforcing Alabama’s marriage laws. Her efforts are predicated on the conceit that she is vindicating civil rights.

A few people have critiqued her actions and shown aspects of her lawlessness. For example, legal scholar John Eastman recently showed that Granade is flouting binding US Supreme Court precedent and reaching beyond her jurisdiction, while the Alabama Supreme Court is following the law as it exercises its supervisory authority over Alabama’s judicial officials, ordering them to obey Alabama’s marriage laws. Yet those critiques have been largely ignored.

The media, law professoriate, and various activists have ridiculed Alabama Chief Justice Roy Moore, who argues that Judge Granade’s actions amount to tyranny. Moore fits their civil rights narrative, in which he plays George Wallace to Callie Granade’s Frank Johnson.

But that narrative is problematic in at least two respects. First, in a 7-1 ruling from which Moore recused himself, the Alabama Supreme Court recently ratified most of Moore’s legal arguments. Second, Moore’s description of Granade’s actions as judicial tyranny is justifiable.

I do not endorse all of Moore’s legal theories, nor his means of advancing his arguments. Chief Justice Moore has not asked for my advice, and I have not offered any to him. Yet he is not wrong about Judge Granade. She has acted contrary to her duty, contrary to facts, and contrary to reason. She has refused to exercise her judicial power—the power to decide cases that actually come before her—and she has unjustly claimed and abused non-judicial powers.

An Eyewitness Account

I know this because I witnessed it. For a little over a year, I served as an expert consultant to the Attorney General of Alabama concerning challenges to Alabama’s marriage laws in various federal courts. In that capacity, I gained an intimate knowledge of the submissions in those cases. I have read Judge Granade’s memoranda and orders with interest. They are stunningly contrary to the facts and the law.

Judge Granade did not stop at merely ignoring the facts and arguments. She was not content merely to make things up. Instead, she entered findings that directly contradict the undisputed facts in the summary judgment record. And she affirmatively misstated the contents of the written submissions filed by the Attorney General.

Everything stated below is a matter of public record. I am not revealing any secrets or breaking any confidences. Any news reporter could have revealed all of this weeks ago.

Judge Granade’s lawlessness is unlikely to be reviewed on appeal. And the officials in Alabama who have sworn to uphold and defend the laws are constrained in their freedom to criticize Judge Granade’s actions by her orders. They cannot be perceived as advising anyone about the lawfulness of Alabama’s marriage laws lest they risk contempt proceedings.

An examination of Granade’s actions can serve as a case study of a shameful period in the history of the American legal profession. In this episode, which began with the Massachusetts Supreme Judicial Court’s decision in Goodridge v. Department of Public Health and seems about to culminate in a nationwide, judicially imposed redefinition of marriage this summer, the legal profession has turned against law. As Justice Alito observed in his Windsor dissent, we are witnessing “an arrogant legal culture that has lost all appreciation of its own limitations.”

My primary motivation for giving this account is that someone must make the record of Judge Granade’s lawlessness. Even summarizing it requires more than one essay. Today, I examine her mistreatment of the facts. Tomorrow, I show why the rationale she offered for her actions is incoherent, and show that she misrepresented the Attorney General’s arguments.

Not only do Granade’s factual findings have no support in the record of any of the cases, some of them are directly contradicted by the undisputed evidence in the submissions in the case that was actually briefed on the merits.

Granade has since ruled in a separate case that was never briefed on the merits. In that case:

– she granted final relief to the plaintiffs by way of a preliminary injunction, a grievously inappropriate use of that procedure,

– which enabled her to avoid hearing arguments on the merits and

– to retain jurisdiction over the case even after making what amounts to a final decision.

– She is now wielding that jurisdiction as a threat against a growing list of Alabama officials, even entertaining a motion to bring into the case all same-sex couples and all probate judges in the entire State, which would make Granade de facto chief probate officer of the State of Alabama.

That is a very incomplete list of her extraordinary abuses of power that I do not have space to examine here. There are too many actions to discuss that are even more egregious.

The Facts: Judge Granade Ignored the Testimony of Expert Witnesses

Judge Granade asserted that Alabama law, which defines marriage as the union of a man and a woman, discriminates on the basis of sexual orientation. But one of the Attorney General’s expert witnesses reported that Alabama’s laws, which define marriage as “inherently a unique relationship between a man and a woman,” codify an understanding of “marriage as a stable male-female sexual bond oriented to family life,” and that the distinctive value of marriage can be seen apart from religious beliefs, subjective opinions, or hostility toward anyone. Furthermore, the expert showed that this definition of marriage could not possibly have been grounded in animus against homosexuals, because the concept of homosexuality is a more recent phenomenon than the definition of marriage codified in Alabama law. All known civilizations have defined marriage as a union of man and woman, including those that were quite tolerant toward same-sex acts.

The plaintiffs did not dispute any of the facts or authorities upon which the expert opinion was based. They did not offer any contrary opinions or evidence. It is thus undisputed in the record of the case that the understanding of marriage codified in Alabama law is rooted in the unique value of natural marriage, and that this understanding could not have originated in bigotry.

The Attorney General’s submissions also established that Alabama law does not single out same-sex couples. The Attorney General showed that Alabama law distinguishes between marriage and non-marriage, not between heterosexuals and homosexuals, and excludes from marriage all non-marital relations, not just same-sex couplings. He expressly identified many Alabama laws that have been enacted to exclude from marriage groups of people other than same-sex couples, including statutes codifying the prohibitions against incest and polygamy.

The challenged codifications of Alabama’s marriage definition added various safeguards to prevent the erosion of the definition of marriage, including provisions that prohibited the issuance of marriage licenses to parties of the same sex. The Attorney General argued that these provisions were defensive measures, enacted as courts were striking down marriage laws in order to require states to issue marriage licenses to same-sex couples. (If activist judges were at the time promoting polygamy, one might reasonably infer that Alabama might have expressly prohibited polygamous marriage licenses.)

The plaintiffs did not show that Alabama’s marriage laws prohibit same-sex-attracted people from marrying. Yet Judge Granade nevertheless found that Alabama’s laws classify “based on sexual orientation.” The plaintiffs did not refute the Attorney General’s showing that Alabama law excludes many non-marital groups from marriage, not just same-sex couples. Yet Judge Granade found that Alabama’s marriage laws “single out same-sex couples and prohibit them, and them alone, from marrying.” She did not mention any of the undisputed facts or laws that directly contradict these unexplained and groundless findings.

The key factual premise in Judge Granade’s ruling was her assertion that the “Attorney General fails to demonstrate any rational, much less compelling, link” between Alabama’s marriage laws and the goal of encouraging parents to raise children in intact, biological families. She saw “no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children.”

Leave aside the obvious non sequitur, which I address in tomorrow’s essay. What Judge Granade asserts the Attorney General failed to demonstrate is something that the Attorney General demonstrated at length and in detail.

The Rational, Compelling Link between Marriage Laws and Children’s Welfare

One of the Attorney General’s experts reported that Alabama law employs presumptions, incentives, and disincentives to connect children to their biological parents and kin, including the strong custodial presumption in favor of natural parents, the presumption of paternity, and laws of intestate distribution. The expert opined that Alabama might reasonably conclude that extending legal marriage recognition to same-sex couplings “might cause social harm by disrupting the presumptions by which Alabama law efficiently connects children to their biological parents and other kin, and by promoting a general view of marriage that would undermine the stabilizing norms of permanence and exclusivity that also strengthen families.”

The expert explained that the logic of legal recognition for same-sex couplings undermines the logic of the presumptions and incidents that favor biological parentage. And he opined that Alabama could reasonably suppose that “legally recognizing same-sex bonds would promote in culture the idea that emotional union is the most defining feature of marriage; and that the more people embraced and lived by this idea, the less they would adhere to stabilizing marital norms like permanence and exclusivity, which serve the public good.”

Judge Granade does not mention any of this. One would search her rulings in vain for any indication that the Attorney General even submitted expert witness reports, much less that the undisputed contents of those reports contradict her findings directly.

Next, Judge Granade found that “Alabama’s [marriage] laws harms [sic] the children of same-sex couples.” She made this up from nothing; no one offered any evidence of harm to children raised by same-sex couples.

She also found, “these laws further injures [sic] those children of all couples who are themselves gay or lesbian, and who will grow up knowing that Alabama does not believe they are as capable of creating a family as their heterosexual friends.” The predicate for this latter finding is contrary to the undisputed showing that Alabama law holds nothing against anyone on the basis of their sexual orientation.

Beyond that, Granade’s findings were undercut by the report filed by the plaintiffs’ own expert witness. In support of his opinion that same-sex couples can parent capably (an opinion that the Attorney General did not contest, because it had no bearing on the issues), the expert cited a small number of scholarly articles, including two written by sociologist Mark Regnerus describing the findings of the New Family Structures Study. That study uncovered substantial evidence that children do best when raised in intact, biological families and that children raised by same-sex couples are at significantly greater risk of sub-optimal outcomes.

In one of the articles cited by the plaintiffs’ expert, Regnerus compared children raised in intact biological families with all other family structures—including non-marital structures such as divorced homes, single-parent homes, male-male headed, female-female headed, and concluded, “children appear most apt to succeed well as adults—on multiple counts and across a variety of domains—when they spend their entire childhood with their married mother and father.” He also concluded that, compared to children raised in intact biological families by mother and father, children raised in same-sex-headed homes are “markedly different on numerous outcomes, including many that are obviously suboptimal.”

The Attorney General also introduced a report from a sociologist showing that the field of studying same-sex-headed households is too new, and the studies performed so far are too limited, to support any broad claims about the virtues of child-rearing in same-sex households. This report also went undisputed. “In sum,” the Attorney General observed in his final brief, “the social science evidence does not support the conclusion that there are no differences between marital homes and same-sex headed homes.”

Judge Granade did not mention any of this.

In short, Judge Granade ignored the case in front of her, then decided a hypothetical case involving facts that she made up, many of which directly contradicted the undisputed facts in the actual case before her. As I show in tomorrow’s essay, she also made up legal arguments and ignored or misstated the law and the arguments that the Attorney General presented.