- Click here for the article.
On Friday, the Texas Supreme Court refused to review a lower court ruling holding that cities may not deprive married same-sex couples the benefits it provides to opposite-sex couples. The court’s decision leaves in place a pro-equality ruling that forbids the government from discriminating against gay people for no good reason. But one judge, Justice John Devine, argued that his court should have taken the case and reversed the lower court’s judgment. His opinion is an ominous sign that conservative judges are striving to work around Obergefell v. Hodges and affirm the constitutionality of state-sponsored anti-gay discrimination.
Devine is clearly no fan of Obergefell, and his dissent attempts to minimize that decision to an almost dishonest degree. “Marriage is a fundamental right,” Devine wrote. “Spousal benefits are not.” Devine insisted that Obergefell’s affirmation of same-sex couples’ constitutional right to wed does not preclude Texas from discriminating against married, same-sex couples in other ways. Obergefell, the justice argued, was strictly limited to gay people’s fundamental right to marry. So long as a state does not revoke that right, it can deprive same-sex couples of other benefits guaranteed to opposite-sex couples. Specifically, Devine wrote, the government can refuse to give spousal benefits to its gay employees because they are gay.
Why should Texas be permitted to deprive same-sex couples of the benefits provided to opposite-sex couples? Because the state has an “interest in encouraging procreation.” Devine speculates that “offering certain benefits to opposite-sex couples would encourage procreation within marriage.”
