Supreme Court’s ‘Ten Commandments’ Justice Wedges His Obvious Anti-Gay Animus Into a Dissent
Texas Supreme Court Justice John P. Devine says there’s a difference between denying couples the equal right to marry and denying couples the equal right to benefits. It’s perfectly constitutional to deny same-sex couples benefits, Justice Devine says in his dissent of a denial of a petition for review.
“Marriage is a fundamental right. Spousal benefits are not. Thus, the two issues are distinct, with sharply contrasting standards for review,” Justice Devine writes in his dissent.Â
Devine notes that the Supreme Court’s Obergefell case, which found same-sex couples have the constitutional right to marry, was “not an Equal Protection challenge to the allocation of employment benefits.” And he reiterates, “marriage—not spousal employment benefits—is a fundamental right, and laws limiting access to a fundamental right receive stricter scrutiny than laws distributing government benefits.”
And then, to support his obvious personal bias, Justice Devine offers this defense:
“Consider the State’s interest in encouraging procreation,” Devine posits, surmising that “offering certain benefits to opposite-sex couples would encourage procreation within marriage.”
This is the same mentality that comes from antediluvian school boards and lawmakers who believe factual sex education claases lead to pregnancy.
“After all, benefits such as health insurance provide financial security as couples decide whether to have a child,” Devine continues, desperately attempting to make his case. “An opposite-sex marriage is the only marital relationship where children are raised by their biological parents,” he adds, wholly negating the fact that same-sex couples raise children too, often their own.
Slate’s Mark Joseph Stern, who first wrote about the dissent, notes Devine’s “argument is profoundly insulting to nonbiological children: It suggests that a gay employee’s nonbiological child, birthed by the employee’s same-sex spouse, is not as worthy of state ‘resources’ as an employee’s biological child would be.”
“Really, though, the bigger problem here is that Devine simply butchers Obergefell beyond recognition,” Stern continues. “The justice utterly overlooks the fact that Obergefell, like Windsor, has an Equal Protection component that is critical to its holding. In Obergefell, the court wrote that states may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’ Devine insists that the ‘terms and conditions’ of marriage are nothing more than the laws governing marriage, like minimum age statutes and bigamy bans.”
Texas Monthly described Devine as “an anti-abortion activist and self-styled ‘Ten Commandments Judge,’ because in 2004 he was sued for refusing to remove from his courtroom a painting of the Ten Commandments.
Stern rightly calls Devine’s opinion “an ominous sign that conservative judges are striving to work around Obergefell v. Hodges and affirm the constitutionality of state-sponsored anti-gay discrimination.”
And that’s something we all must pay extra close attention to.
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