John M. Becker

AL Judge: Destroy Marriage Rather Than Allow Same-Sex Weddings

Filed By John M. Becker | February 18, 2015 12:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Alabama, ban marriage, gay marriage, Glenn Murdock, marriage discrimination, marriage equality, same-sex marriage

glenn-murdock-alabama.jpgA justice of the Alabama Supreme Court is suggesting that if marriage equality continues to be legal in the Yellowhammer State, he would vote to destroy the institution of marriage entirely rather than allow same-sex couples to participate in it.

Ian Millhiser reports over at ThinkProgress:

Justice [Glenn] Murdock's opinion is attached to a brief order from the state Supreme Court as a whole declining to offer further guidance to Alabama probate judges regarding whether they must comply with a federal court order holding that same-sex couples are entitled to the same marriage rights as straight couples. In a brief opinion concurring in that order, Murdock hints that, if this federal court order is permitted to stand, then his own court should strike down all marriages within the state of Alabama.

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 prior 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.

More details, after the break.

Of course, legal experts -- including Justice Murdock himself -- admit that his conjectures have almost zero chance of becoming anything more than words printed on a page. Via the Birmingham News:

"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," he wrote. "Nor has here been a showing that these questions are properly before us on some other basis."

Legal experts agreed that in order to strike down all Alabama marriage law, it would take a separate lawsuit challenging it. A pair of experts said it would be difficult for someone to demonstrate that he suffered harm from marriage law that would allow him to sue in the first place.

What's more, they said, it is questionable whether a court would buy the 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.

So fear not -- Murdock's musings do not currently represent a credible threat to the institution of marriage in Alabama. But what does it say about the depth of the justice's homophobic bigotry that he would throw all married Alabama couples under the bus, and end civil marriage altogether rather than give same-sex couples equal access to it?

thrown_under_bus.jpgIf this all sounds familiar, that's because Mike Turner, a Republican state representative in Oklahoma, made a similar proposal in that state's legislature last year. A bill that would get Oklahoma out of the marriage licensing business passed out of committee in the state House of Representatives yesterday.

But it's also the very same strategy southern segregationists used to try to get around the Supreme Court's 1954 decision in Brown v. Board requiring states to desegregate their schools. In Virginia, for example, the legislature ordered the state to close any public school that was subject to a federal desegregation order. Prince Edward County closed down its entire school system.

Needless to say, these appalling tactics failed to pass constitutional muster, the same fate that would befall Murdock's plan, should the Alabama Supreme Court inexplicably adopt it.

And just like in the Jim Crow days, efforts in Alabama -- and in any other state -- to shut down a massive public institution just to prevent a disfavored minority from participating in it aren't based in logic or rational thinking. They're based in animus, fear, bigotry, and hatred.

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