Alabama Supreme Court Justice Glenn Murdock voiced his opinion that all marriage in the state should be banned if gay marriage is to be allowed.
Murdock’s opinion was included with a brief order from the state supreme court as a whole that declined to offer further guidance to Alabama probate judges on whether they should comply with a federal court order that gives same-sex couples the same marriage rights as straight couples, reports AL.com.
Chief Justice Roy Moore issued an order instructing probate judges in Alabama to ignore the U.S. District Judge's ruling that struck down the state's same-sex marriage ban. It was agreed upon by Murdock that only the governor or legislature can review Moore’s administrative order, but Murdock added his own remarks to the opinion.
“…Considering the meaning of the term 'marriage' intended by the Legislature in those statutes, they may be deemed to survive, or must be stricken as wholly void, if they are not to be applied solely to a union between a man and a woman,” Murdock wrote.
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Murdock claims if the state legislature had known its decision to exclude gay couples from marrying was unconstitutional, it may have preferred to not permit anyone to be married in the state of Alabama, Think Progress reports.
Murdock cited a case from 1945, A. Bertolla & Sons v. State, wherein the court held that a law is unconstitutional in its entirety if “the invalid portion is so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalid part so held to be unconstitutional."
Thus, in Murdock's opinion, if straight and gay couples are to have the same marriage rights under the Constitution, the right thing to do may be to deny those rights to everyone.
Whether marriage should be abolished in the state of Alabama is not a topic that has been breached, and thus Murdock’s comments do not have a current bearing.
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"These questions, however, are not before us in an adversary proceeding or in the context of a request for an advisory opinion by the Governor or the Legislature," Murdock wrote. “Nor has here been a showing that these questions are properly before us on some other basis."
A separate lawsuit would need to be filed if Alabama were to consider striking down all marriage law. According to experts, it would be a difficult lawsuit as the individual would have to prove they were harmed by marriage law in order to sue—and a court would have to accept their argument.
"I don't find it a particularly persuasive or compelling argument," said Ronald Krotoszynski, a University of Alabama School of Law professor. "It's virtually unimaginable to me. ... It would be a remarkably bold step for a court to take."
David Kennedy, the attorney that represented the plaintiffs in the suit that prompted Granade’s ruling, does not see an all-out marriage ban likely.
"I really don't believe that to be necessarily the case at all," Kennedy said, adding that of the 36 other states who have adopted same-sex marriage laws, none have done away with marriage laws.