An Alabama judge is thinking now that the best way to discourage same sex marriage is to eliminate state sanctioned marriage altogether.
A job that has historically been tasked to government is to encourage people to undertake activities which are good for everyone (that is, for society at large), and to discourage those that are harmful. So, we get a tax break for donating to charities, and cigarette packages have warnings. The things that government chooses to encourage or discourage are many, and often not universally agreed upon.
State sanctioned marriage is not necessary for anything in our society. Since, for so long, certain types of family units were unable to be married, there have been legal and practical ways invented to accomplish all the things families need to do. In addition, government incentives have actually penalized marriage financially, so a lot of families choose not to enter that legal contract.
I think marriage is probably on balance good for society, but I’m not sure it’s so important that the government needs to weigh in on it. People could still be married, but it just wouldn’t have any legal consequence. They could get married at church, or however they wanted to.
An obscure, two-page opinion by an Alabama Supreme Court justice contains an ominous warning. If marriage equality remains the law in Alabama, Justice Glenn Murdock may vote to abolish marriage in his state altogether.
Justice 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.