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.
In the unlikely event that a majority of the state supreme court adopts this approach, that could cause a largely academic matter that has divided federal judges to suddenly become hugely important. Though the overwhelming majority of federal judges to consider the question after the Supreme Court’s most recent gay rights decision in 2013 agree that the Constitution does not permit anti-gay marriage discrimination, these judges have split on rationale. Some judges have held that denying equal marriage rights to gay, lesbian and bisexual individuals deprives them of their right to equality under the law; while others have held that denying such rights to these individuals violates a “fundamental right” to marry. (Other judges have embraced both rationales in favor of marriage equality, or they’ve embraced a hybrid of the two rationales.)
Currently, this distinction between legal rationales has little practical impact on couples asserting their newly recognized right to marry. If Alabama attempted to abolish marriage altogether, however, the distinction could suddenly matter a great deal.
The Constitution’s promise of equality is just that — a promise of equality. In the gay rights context, a state complies with this constitutional requirement by treating people of all sexual orientations the same way. Thus, a state could potentially meet its obligation to treat all couples similarly by denying the same right to all of them.
If marriage is a fundamental right, on the other hand, that could lead federal courts to conclude that states have an obligation to provide marriage rights to their residents whether they want to or not (although they may need to overcome one Supreme Court decision to do so). Under this rationale, Justice Murdock and his court would be forbidden from destroying the institution of marriage.
The federal judge that ordered Alabama to provide equal rights to gay couples, for what it is worth, held that “the institution of marriage itself is a fundamental right protected by the Constitution,” although this rationale will not necessarily be adopted by either the federal appeals court that oversees Alabama or by the Supreme Court.