Texas Supreme Court Justice John Devine is among the judges who refuse to give up on trying to discredit Obergefell v. Hodges, the landmark U.S. Supreme Court case granting same-sex couples the right to marry.
Instead of just accepting the ruling and moving on like the vast majority of Americans and legal leaders, Devine appears to prefer to nitpick at Obergefell to find other ways to discriminate against gay people; namely, by trying to deny them marriage benefits.
In a dissenting opinion released last week, Devine argues that his Supreme Court colleagues made a mistake when, on the basis of Obergefell, they declined to hear a case in which two Houston taxpayers sued the city for paying marriage benefits to its gay married employees; the taxpayers argued it was a waste of their money. The lawsuit was actually filed before Obergefell was handed down last June. Instead, it was a response to Houston's decision in November 2013, under Mayor Annise Parker, to start offering marriage benefits to same-sex couples who were married in other states.
After Obergefell, however, a lower court threw out the lawsuit in 2015. But still, these two taxpayers — Larry Hicks and Jack Pidgeon, who is a senior pastor at West Christian Center — didn't want to give up, appealing to the high court. And Devine apparently was willing to humor them just one last time.
His reason as to why their argument is legitimate? The state needs to "encourage procreation."
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Devine argues that while marriage is a fundamental right under Obergefell, spousal benefits are not, and therefore his colleagues erred by applying Obergefell in this case. He argues that difference between men and women should be "celebrated," and the state has a legitimate interest in celebrating those differences. Here is how Devine explained why "encouraging procreation" is a legitimate interest for Texas:
"The State may well have believed that offering certain benefits to opposite-sex couples would encourage procreation within marriage. After all, benefits such as health insurance provide financial security as couples decide whether to have a child. An opposite-sex marriage is the only marital relationship where children are raised by their biological parents. In any other relationship, the child must be removed from at least one natural parent, perhaps two, before being adopted by her new parent(s). This does not diminish any child’s inherent dignity, a fact the City presumably recognizes by extending benefits to their employees’ children regardless of the employees’ marital status. But it does explain why the State might choose to direct resources to opposite-sex couples."
Never mind all that stuff about equal protection — whether for married people or their children, right?
Perhaps Devine would have been open to hearing out the man who sued the Harris County District Clerk's Office for denying him the right to marry his Mac laptop. That guy wanted to prove that Obergefell was not legitimate by arguing there is no difference between marriage between same-sex couples and marriage between man and a computer — because the two can't procreate.