Case in point: Alabama Supreme Court Justice Glenn Murdock has thrown out the possibility that all marriages will be eliminated if same-sex couples are ultimately successful with our efforts to legally protect our families:
Justice Glenn Murdock raised the possibility in a concurring opinion when the full court declined to issue a "clarification" of Chief Justice Roy Moore's order instructing probate judges to ignore U.S. District Judge Callie V.S. "Ginny" Granade's ruling striking down the state's same-sex marriage ban.Which makes you wonder if someone or some group would go out of its way to challenge the existence of Alabama's marriage laws in order to effectively ban gays from marrying -- by destroying marriage altogether.
Murdock agreed with his colleagues that the request by Mobile County Probate Judge Don Davis to review Moore's administrative order was improper because only the governor or Legislature can do so. But he wrote separately, in part, to discuss the possibility that "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 cited a 1945 case, A. Bertolla & Sons v. State, which the court held that a law is unconstitutional in its entirety if "the invalid potion 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."
The court at the time described the circumstances under which a law could be saved if part of it were declared unconstitutional. "The test is ... whether the legislature would have passed the statute without" the unconstitutional part.
So the potential question in the gay marriage case would be whether the Legislature would have codified marriage as a legal institution if it had been available more broadly than one man and one woman.