By Tony Perkins
Leave it to a federal judge named Granade to blow up the marriage debate into an even bigger legal debate. Federal Judge Callie Granade, whose ruling was as explosive as the weapon it sounds like, has been at the center of a national firestorm over marriage since she issued an opinion last month. Her January decision to overthrow Alabama’s natural marriage amendment hit an unexpected snag when officials with legal jurisdiction in Alabama refused to capitulate to her judicial overreach.
By order of Alabama’s Chief Justice Roy Moore, several probate judges across the state have refused to issue same-sex “marriage” licenses — stunning liberals and threatening to topple the Left’s mirage of court-imposed power. As Justice Moore has clearly stated, Granade’s decision is limited to the specific parties to the case and only serves as persuasive (not binding) authority to non-parties. But those non-parties include probate judges under Justice Moore’s administrative authority. In that capacity, he has informed them that anyone who issues licenses to homosexual couples is “breaking the Alabama Constitution’s marriage amendment, which has not been overturned by the United States Supreme Court.” And Alabama’s word is the final one on marriage until the Supreme Court intervenes this summer.
As Chief Justice, Roy’s word is the final one on marriage until the Supreme Court intervenes this summer. That seems to be lost on the Left, who is pitching a fit that Alabama is daring to challenge the authority of one unelected judge. “Nobody has ruled on marriage,” Judge Moore told reporters. “If they had ruled on marriage, we wouldn’t need to be going to the United States Supreme Court in April… There is no law right now that overcomes the Alabama Constitution.”
Granade, who was already on thin legal ice with her ruling, has tried to force Alabama’s hand by ordering one of those probate judges to comply. Late last week, she demanded that Mobile County’s Judge Don Davis follow her directive over Roy Moore’s. “Probate Judge Don Davis is hereby enjoined,” Granade fumed, “from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage.”
Technically, her order only applies to Judge Davis — not the probate judges of all 67 counties. No probate judge is bound by (or party to) Granade’s ruling. In fact, their determination of what the constitution requires is no less valid than the federal district court’s. Until America’s highest court rules, probate judges are still accountable to state authority, which happens to be Chief Justice Roy Moore. Unfortunately, too many people seem to have lost their concept of federalism in this country, thanks to this outbreak of judicial activism. “We’ve got this federal intrusion into state sovereignty… occurring right under our nose and nobody is standing up,” Moore said over the weekend. “Twenty-one states have bowed down to federal court orders when they didn’t have to. We’ve got to understand that what a judge says is not law.”
It’s a complicated legal issue, to be sure. Justice Moore’s critics would do well to pause and understand the legal issues before rushing in and blindly criticizing his position. Someone in an elected position, like Moore, is obligated to stand up for the constitution he or she swore to uphold — and that means not acquiescing to those who exceed their authority. As the Founders proved, this is not only a legitimate use of power, it’s a necessary use of it unless we’re content to live under tyranny. For the latest on Alabama’s resistance, check out Peter Sprigg’s great analysis in today’s Townhall.
Tony Perkins is president of the Washington, D.C.-based Family Research Council. He is a former member of the Louisiana legislature where he served for eight years, and he is recognized as a legislative pioneer for authoring measures like the nation’s first Covenant Marriage law.
(Via FRC’s Washington Update. Tony Perkins’ Washington Update is written with the aid of FRC senior writers.)
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