Alabama Supreme Court Judge: Let's Just Abolish Marriage Altogether

Roy Moore, the antigay chief justice of the Alabama Supreme Court, isn't the only jurist on the state's high court who is digging in his heels in opposition to marriage equality.

Fellow Supreme Court Justice Glenn Murdock offered a novel -- if unlikely -- approach to avoiding the legal recognition of same-sex marriages in a brief opinion attached to a related ruling last week, reports AL.com, a website for several Alabama newspapers.

If Alabama must permit same-sex couples to legally marry, perhaps the state should abolish the institution of marriage altogether, Murdock posited in a two-page opinion issued along with the court's refusal to clarify Chief Justice Moore's directive telling probate judges they could ignore a federal ruling bringing marriage equality to Alabama.

Murdock's opinion does note that the question of whether Alabama's probate judges must issue marriage licenses is not actually before the court. But that doesn't stop him from speculating about the motives of Alabama voters and lawmakers when writing and passing the 2006 Sanctity of Marriage Amendment, which was struck down last month by U.S. District Judge Callie V.S. Granade.

ThinkProgress's Ian Millhiser expertly explains the judge's circular logic:

"Murdock suggests that, had the state legislature known that its decision to exclude gay couples from the right to marry was unconstitutional, it might have preferred not to permit anyone to be married in the state of Alabama. This potential preference for no marriages over equality matters, according to Justice Murdock, because of a [1945] state supreme court decision holding that, when part of a state law is struck down, the law may be declared 'wholly void' 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 invalidity of the part so held to be unconstitutional.'

"Thus, according to Murdock, if gay couples and straight couples must enjoy the exact same marriage rights under the Constitution, the proper remedy might be to deny those rights to everyone, rather than extending them to same-sex and opposite-sex couples alike."

As AL.com notes, Murdock doesn't actually have the authority to unilaterally abolish state-sanctioned marriage in Alabama, and even if he had the support of a majority of the state Supreme Court, such a radical move would be highly unlikely.

In order to strike down Alabama's marriage statutes in full, a separate lawsuit would need to be filed, by plaintiffs who were able to prove that they were harmed by the marriage law itself. By comparison, the same-sex couples who filed suit were able to convince a federal court that they were harmed by the Sanctity of Marriage Amendment's exclusion of their relationships. Judge Granade's pro-equality rulings primarily dealt with that antigay amendment (passed by more than 80 percent of Alabama voters in 2006), rather than the preexisting marriage statutes more broadly.