It is my conviction, and I think that of most of the framers, that our Republic will not fail due to bad legislation. It will fail due to bad procedure. That is, a government that gives us what we want need not be a republic. Dictators use that strategy all the time. I asked my class a simple question. If a republic recognized fewer rights than you want, but a dictator recognized all the rights you want, which would you rather have? Amazingly, most students were hesitant to answer, even deeply torn. When executives legislate, when courts enforce, when Congress abdicates, when state authority is usurped, we have bad procedure, which is worse than bad policy. A dictator who grants you all the rights you want can also take them away, perhaps on a whim. But a constitutional republic arrives at recognizing rights in slow methodical and yet nearly irrevocable procedures. Why? Because it is bound by the principle of “the rule of law,” which asserts that it is better that we pass no policy, or less than ideal policy, than that we enact policy by illegitimate, inappropriate, non-jurisdictional, extra-constitutional means. The saying is true: We are nation of laws, not of men, and we forget that to our own peril.
One law professor speaks of the demise of the rule of law in the Alabama same-sex marriage case.
As I have heard Judge Hand say time after time after time, this is a nation of laws and not of men, and the rule of law is prime in our system of jurisprudence. That is what makes stare decisis such an important factor in how any judge goes about the business of being a judge. I think that as long as judges follow the rule of law and do not become a law unto themselves, they will make a fine judge, and that is what I intend to do should I be so fortunate as to be confirmed.
Testimony of Judge Callie S. Granade before the Senate Judiciary Committee prior to her confirmation.
The “least dangerous” branch of the federal government and the Alabama judiciary are at war. Ordinarily, judicial federalism is a subject of interest to a few legal scholars, political philosophers, and historians. Now it is on the mind of average citizens as they are observing the dangerous battle between the federal courts and the Alabama judiciary. Every citizen should mourn the fact that this battle has wounded, perhaps fatally, the rule of law in Alabama.
Just over two weeks ago, Judge Callie S. Granade, a federal district judge in Mobile, struck down Alabama’s marriage laws as unconstitutional, holding that Alabama had no rational basis for preventing the plaintiffs (two women) from marrying. The Eleventh Circuit and the Supreme Court both denied a stay (over the dissent of Justice Thomas and Justice Scalia). On Monday, a self-imposed stay expired and same-sex couples began appearing in probate offices to file applications for marriage licenses.
Chief Justice Roy Moore of the Alabama Supreme Court responded to the federal injunction by publicly advising Governor Robert Bentley that the judge’s order was not binding in Alabama. Chief Justice Moore issued an order, in his capacity as the chief administrative officer of the Alabama courts, prohibiting probate judges from issuing licenses in contravention of Alabama’s marriage laws. Chief Justice Moore asserts that an inferior federal court ruling is persuasive authority, not binding authority, in any state. In effect, Chief Justice Moore has ordered all state probate judges to disregard the federal court’s injunction and adhere to Alabama’s constitution and laws and has threatened sanctions for those judges who disregard his order.
So what should a probate judge do? What are a probate judge’s legal obligations?
Alabama’s Attorney General, Luther Strange, has instructed probate judges toconsult a lawyer regarding their obligations. Some probate judges are complying with Chief Justice Moore’s order, and motions for contempt proceedings in the federal court have already been filed. Meanwhile, other Alabama probate judges are ignoring Chief Justice Moore’s order and issuing licenses to same-sex couples. Some are making up their own application forms as they go.
Supporters of “marriage equality” are celebrating the federal ruling while wielding the sword of federal supremacy. In their unfolding civil rights narrative, Chief Justice Moore is rather predictably playing the part of the southern obstructionist. There he stands in the courthouse door. Judge Granade’s decision to enter her injunction (just two months before the questions before her are argued in the Supreme Court) was a declaration of war. Given Chief Justice Moore’s prior battles with the federal courts, it is unsurprising that he dared to defend Alabama’s constitutional authority.
Unfortunately, all sides appear not to notice that as they battle they are killing the very thing that they are fighting over. The rule of law is suffering injuries in this tired old battle between individual rights and states’ constitutional authority.
The Wounded Rule of Law
The wounds to the rule of law are, perhaps, easiest to perceive with respect to the strategy selected by Chief Justice Moore. Many, including Professor Ronald J. Krotoszynski of the University of Alabama School of Law, have criticized his constitutional reasoning. Although Moore’s arguments are supported by a considerable constitutional history (for example, state supreme courts ignored the mandate of the United States supreme court dozens of times prior to the Civil War), his defiance of federal judicial power in a state known for such defiance is the wrong strategy.
His statements create the appearance that he denies the supremacy of federal law. Appealing to the Tenth Amendment without acknowledging the Supremacy Clause (and developments occurring since the Civil War amendments) should trouble anyone concerned about the stable rule of constitutional law. Indeed, Justice Thomas and Justice Scalia noted, in their dissent from the denial of a stay in the Alabama marriage case, the obligation of the states to comply with a federal court’s order. Chief Justice Moore’s position is exposing the state’s judiciary and the rule of law to considerable scrutiny.
But it must be observed that Justice Moore did not declare war. The first shot was fired from the federal courthouse in Mobile. The constitutional crisis now unfolding in Alabama is a direct and foreseeable result of Judge Granade’s orders. And a closer examination of her orders reveals that it is the federal court, not Chief Justice Moore, creating the constitutional crisis now undermining the rule of law in Alabama.
A Cavalier Attitude toward States and Their Laws
Striking down a state’s laws is, according to numerous authorities, an act of last resort for a federal judge. The constitutional tensions revealed in Alabama this week are expected costs of federal judicial review of state law. The framers understood this. In fact, fears of federal judicial supremacy threatened the ratification of the Constitution. Madison famously crafted a compromise regarding the very existence of lower federal courts in the states. Lower federal courts would not be constitutionally required and, as a result of the compromise, Article III power was vested only in “one supreme court.”
Congress did create the lower federal courts in the Judiciary Act of 1789. But the jurisdiction of such courts has always been limited. In addition to these jurisdictional limitations, many justiciability and abstention doctrines exist to protect the authority and independence of the states in our federal republic. As the Supreme Court explained in Younger v. Harris, our nation’s federalism requires “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.”
One must wonder, then, why Judge Granade determined it lawful and necessary to take the extraordinary step of striking down Alabama’s marriage laws just months before the Supreme Court hears a nearly identical case. Her judgment unnecessarily disregards deference owed to the states. Her intervention is even more confusing in light of the fact that Justice Kennedy, writing for the Supreme Court two terms ago in Windsor, declared that the federal government had no interest in regulating the family and thereby struck down DOMA on grounds of federalism.
Indeed, Judge Juan Pérez-Giménez, a Democratic appointee by Jimmy Carter to the United States District Court of Puerto Rico, made just this point when he upheld Puerto Rico’s marriage law: “It takes inexplicable contortions of the mind or perhaps even willful ignorance—this Court does not venture an answer here—to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.”
Judge Granade’s order disregards many compelling legal reasons to withhold judgment. As Justice Thomas and Justice Scalia correctly noted in their dissent from the denial of a stay in the case, Judge Granade’s order striking down Alabama’s law and the refusal to stay the decision reflect an “increasingly cavalier attitude toward the states” and their laws.
Furthermore, Judge Granade’s order effectively overrules the Supreme Court’s decision in Baker v. Nelson, which held that a challenge to Minnesota’s marriage laws by two men seeking a marriage license must be dismissed “for want of a substantial federal question.” Like other federal district judges, Judge Granade is bound by this Supreme Court precedent. In her confirmation testimony before the Senate Judiciary Committee, Judge Granade explained that “the principle ofstare decisis should be prime” for every federal judge. Alabama argued that Bakerprecluded review. Nevertheless, Judge Granade’s order sets aside the Supreme Court’s opinion in Baker. In light of these offenses to federalism and stare decisis,Chief Justice Moore’s response is not really that surprising.
The Role of Law in Society
To understand how these actions have wounded the rule of law, one must consider the role of law in any society. Law is a rule or standard. Law is used by a judge to resolve disputes and determine the rights, duties, privileges, and liabilities of the parties before the court. It is fundamental to the rule of law that a judge is not a lawmaker. Judges do not make up the rules as they go. Instead, judges use rules of law impartially to guide judicial decision-making.
Judge Granade, in her Senate confirmation testimony, explained this fundamental concept as follows:
I am a firm believer in our three-branched system of democracy and the way it was designed to work by the framers of the Constitution. For it to function properly, each branch should stick to the function assigned to it. This means that the federal judiciary should stick to interpreting and applying the law—and stay away, to the best of its ability, from “making” law or “enforcing” law. Courts are not designed to run executive programs and should avoid oversight responsibilities if at all possible.
In other words, Judge Granade rightly noted that the separation of the judicial function (identifying and applying law) from the legislative and executive powers is fundamental to the rule of law. In order to ensure the impartiality of judges and the legitimacy of their judgments, then, it is critical that judges are guided by the rule of law. As Alexander Hamilton explained in Federalist No. 78,“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”
According to Judge Granade’s opinion, her order striking down Alabama’s marriage laws is required by the due process and equal protection clauses of the Fourteenth Amendment. What rules or precedents led her to this judgment? As noted above, her order contradicts the jurisdictional holding of Supreme Court precedent. She noted that the Eleventh Circuit “had not yet determined the issue” and offered no prudential support therefrom. Rather than deferring to this lack of authority and entering judgment on behalf of the party entitled to judgment as a matter of precedential authority (and thereby allowing the non-prevailing party to appeal to the Supreme Court to argue that Baker ought to be overturned), Judge Granade struck down Alabama’s law.
A Cascade of Questions
Read literally, Judge Granade’s order strikes down Alabama’s marriage laws in their entirety. Her order declares that Alabama’s constitutional amendment defining marriage and its definition of marriage in the state code are unconstitutional and enjoins “enforcing those laws.” But perhaps because federal courts are not well-equipped to “run executive programs,” Judge Granade’s order fails to provide any rule or standard to determine what the law of marriage now is in Alabama.
What is marriage law in Alabama now? What groups of people are entitled to receive a license? Are all of the marriages that have been contracted in the state of Alabama now unconstitutional? If not, then which ones are still valid? Must Alabama officials stop enforcing all of marriage’s legal protections for the rights of children, such as the presumption of paternity and presumptions of biological parental custody? After all, those incidents cannot apply equally to same-sex couples as to married couples.
What “rule of law” answers these fundamental questions? Judge Granade has now set herself up to be the chief probate officer in the state of Alabama. She has not defined marriage, and her failure to do so leaves state actors, especially probate judges, without a definition of the institution for which they are issuing state licenses. Worse, she has provided no legal standards—not even a limiting principle—to guide her administration of Alabama family law, which she has now taken upon herself. She will be rewriting the family laws of Alabama, piecemeal and arbitrarily, from her bench. Rather than conducting legislative hearings regarding the familial rights and duties related to the definition of marriage, Judge Granade will be conducting contempt proceedings in which she will decide on a case-by-case basis which actions of Alabama officials violate the Constitution and which do not.
If the rule of law is not already dead in Alabama, then it is seriously wounded indeed.
Robert McFarland is Vice Dean and Associate Professor of Law at Faulkner University’s Thomas Goode Jones School of Law.