pidgeon dissent by devineThis week, Texas Supreme Court denied review, upholding a lower court’s ruling that cities cannot deprive married same-sex LGBT couples the benefits it provides to opposite-sex couples. However, Justice John P. Devine filed a dissenting opinion to the denial of review.

Read the dissenting opinion here Pidgeon v. Turner.

Justice Devine disagreed with the denial of review, arguing that the high court should have heard the case. “Marriage is a fundamental right. Spousal benefits are not,” he wrote in his dissent. Further, he urged that the state has an interest in encouraging procreation and that offering benefits to opposite-sex couples would encourage procreation within marriage.

“After all, benefits such as health insurance provide financial security as couple 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).”

Thus, Devine argues that Texas may recognize the differences between same-sex and opposite-sex spouses as it relates to employment benefits without violating the constitutional protections of same-sex marriage equality.

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.” 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.”

The problem I have with Justice Devine’s dissent is the complete disregard for parents of either orientation that adopt children. Adopting children is a high calling, and for some a necessary calling to enable them to have children. And legally and morally, adopted parents are every bit as much a parent as a natural parent. I also disagree with Justice Devine’s assessment that adopting children or having children through assisted reproduction necessitates removal of one or both parents. In many situations, children don’t have both parents – that isn’t an option. Justice Devine’s logic shows a lack of connection to any part of society that doesn’t involve a long-term, monogamous, heterosexual relationship. As much as that might be the “Leave It To Beaver” ideal of the 1950’s, that isn’t the reality of our current state of society.

 

Print:
EmailTweetLikeLinkedIn
Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.