This 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.
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.