Yesterday, I began to examine some of the lawless actions of Hon. Callie Granade, United States District Court judge, who struck down Alabama’s laws defining marriage as the union of a man and a woman and is unlawfully asserting jurisdiction over Alabama officials. Today, I show that she affirmatively misrepresented both the law and the arguments of the Attorney General in the only case that was briefed on the merits. I then explain why her actions are properly understood as judicial tyranny.

Judge Granade’s Incoherence

Consider the incoherence of Judge Granade’s rationale. The only justification that she has offered for her actions is contained in her initial Memorandum Opinion and Order. In that short document, she leveraged the fundamental marriage law of Alabama (what she called the “institution of marriage”) to discern a new right to same-sex “marriage” while simultaneously asserting that the fundamental marriage law of Alabama as codified in Alabama’s constitution and code (that is, the same institution of marriage) is irrational and unconstitutional. On that ground, Judge Granade ordered the Attorney General and various officials who were not parties to the case not to enforce Alabama’s definition of marriage.

So, Granade’s reasoning is premised on the existence of an institution—marriage—that she has declared irrational and unlawful, while she orders Alabama officials to issue “marriage” licenses to same-sex couples. At least for Lewis Carroll’s Humpty Dumpty, a word means what he chooses it to mean. When Judge Granade uses a word, its meaning disappears altogether. (Thankfully, Humpty Dumpty does not wield the power to toss people into jail.)

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In briefs filed in the case, the Attorney General predicted that a ruling for the plaintiffs would render the term “marriage” meaningless.

If marriage is about the intimacy of adults, on what grounds can it be limited to two partners? In fact, why would re-defined marriage have to involve sex at all, or be restricted to partners that the law otherwise allows to engage in a sexual relationship (i.e., non-relatives of appropriate age)? Any pair (or larger ensemble) committed to living together and caring for each other could argue that their affection deserves the same benefits and dignity as married couples. None of these relationships can claim a right to marry under the current definition, but if Plaintiffs’ new right (with no discernable limits) is recognized, they very well may.

Judge Granade ignored this. As my colleague Robert McFarland observed, Granade has not offered a new definition of marriage, even as she has threatened contempt rulings against Alabama officials who fail to act on her as-yet-undisclosed notion of what marriage is.

In his submissions to Granade, the Attorney General also predicted that eliminating the definition of marriage from law would weaken the link between children and their natural parents “because the new definition enshrines in the law a message that mothers and fathers, men and women, are fungible when it comes to parenting, and that there is no rational reason to consider that a biological parent is any better-suited than any other person, of whatever gender, to rear his or her children.” Before Granade’s first order became effective, some Alabama officials had already announced that the records of the State Alabama will no longer distinguish between husband and wife, father and mother.

Mischaracterization of the Law and Arguments

The rhetorical force in Judge Granade’s short Memorandum was supplied by her insistence that Alabama law discriminates against people with same-sex attraction. But the Attorney General explained at length that this was not true. Instead, the law distinguishes on the basis of the structure of a relationship according to whether it has the nature of marriage or not. In his initial brief he explained,

it is not only intimate same-sex unions that are excluded from marriage. So are many, many other relationship structures, including a wide range of emotionally fulfilling forms of companionship.  None of these other relationships are marriages as that term is used in Alabama law, even though they each have their own value and dignity. In this critical respect, Alabama has not singled out same-sex relationships and said no; it has singled out conjugal marriages from all other human relationships and said yes.

The Attorney General further explained,

Plaintiffs’ Equal Protection claim … is predicated on the contention that Alabama’s laws discriminate on the basis of sexual orientation. But Alabama marriage laws in fact distinguish between marriage and all non-marital relations. The definition adopted by Alabama from its inception as a state, derived from ancient law and custom, does not include same-sex relationships or many other non-marital relationships because they are inherently non-marital. This is not to say that same-sex couples (or other non-marital ensembles) do not share love or commitment, that their relationships lack dignity, or that prejudice should be tolerated. But while the law must and should recognize the value, freedom and dignity of all Alabama citizens, a same-sex intimate relationship, like so many other human relationships, is not a “marriage.”

Judge Granade ignored these arguments (and many others), ignored the law, and insisted that the Attorney General “proffers no justification for why it is that the provisions in question single out same-sex couples and prohibit them, and them alone, from marrying.”

What was Granade reading? Certainly not the law or the arguments of counsel.

Rational Relation

The key move in Judge Granade’s rationale was her insistence that Alabama’s marriage laws were not rationally tailored—narrowly or even at all—to the goal of establishing ties between children and their biological parents and extended biological kin. She asserted, “The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children.” Before knocking it over, she padded this straw man even further:

The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote. There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children.

This logic could not be farther from the law or the arguments in the case. The parties took it for granted that men and woman are going to have children, and nothing in the submissions could reasonably be interpreted otherwise. Furthermore, the Attorney General and his experts explained at length how the presumptions and incidents of natural marriage laws secure the rights of children to be connected to their biological parents and kin relations, and thus incentivize adults to raise their children. To take just a few examples, they explained:

– that the rights of biological parents can be “terminated by the state only upon a finding, from clear and convincing evidence” of the parents’ inability or unwillingness to perform their natural duties;

– that Alabama’s “Juvenile Justice Act [seeks] ‘to reunite a child with his or parent or parents as quickly and safely as possible’”;

– that “Alabama has expressed a ‘general philosophy’ that ‘children need both parents, even after a divorce’”;

– that before “a child may be placed for adoption, the mother and presumed biological father must give consent”;

that the presumption of paternity ties fathers to the children of their wives;

– and that Alabama law contains incentives for marital fidelity and disincentives for marital infidelity and parental neglect.

One of the Attorney General’s experts explained that these and other supports for natural marriage and biological parenting in law are “relatively unobtrusive, low-cost ways for the state to promote the bonds between children and their parents and other kin, with an emphasis on biological ties.” And the Attorney General pointed out that binding Eleventh Circuit precedent “holds that it is reasonable to believe that a child will do better, all else being equal, with both a Mom and a Dad; preserving the links between biological children and parents helps to ensure connections with both.”

The Attorney General further explained the implications of the alternative. “For Plaintiffs to prevail, they must argue that it is irrational to believe there is any advantage whatsoever to a child being raised by his or her biological parent, and that it would make no difference to the child at all if a biological parent were replaced with any other person, male or female.” Therefore, a “ruling for Plaintiffs would proclaim that the legal incidents, presumptions, and duties supporting and incentivizing the separate offices of biological fatherhood and motherhood are arbitrary, groundless, perhaps even bigoted.”

That, of course, is precisely the implication of Judge Granade’s rulings.

There is much, much more explanation spread throughout the Attorney General’s submissions—pages and pages of reports, facts, and arguments. Did Judge Granade not understand any of it? When she falsely asserted that the Attorney General failed to explain the connection between marriage and biological parentage, did she know that he had in fact done so extensively and in detail?

The Judicial Power and Judicial Tyranny

The federal judicial power is not the power to ignore or misrepresent the case or controversy before the judge. It is not the power to resolve important and disputed political questions that are not before the judge. It is not the power to impose one’s own personal opinions about those contested political questions upon parties and upon people who were not parties to the case. It is not the power to silence critics of one’s actions by hanging over them the specter of contempt proceedings, which carry the potential injuries of public humiliation, professional ruin, and even jail.

The legal authority of a United States District Court judge’s pronouncements is premised on the judge’s lawful exercise of judicial power to resolve a legal dispute that is presented to her for resolution. Why should a federal judge expect citizens, lawyers, and officials to obey her orders when she ignores the cases before her, and when she holds facts, law, and reason in such obvious contempt?

Parties who have cases in Judge Granade’s court and their lawyers might well wonder why they should bother presenting their cases. Why bother with discovery, evidence, expert opinions, research, and arguments? Why bother with facts? Why bother with law? Judge Granade obviously considers herself free to ignore the case before her and the issues presented, make up a fictional case, and then impose her resolution of that fictional case on the parties and others.

So, is Alabama Chief Justice Roy Moore justified in characterizing Judge Granade’s actions as judicial tyranny? Raw power, asserting the force of law, itself unbounded by law, facts, and reason: yes, tyranny is an appropriate word.