From the Wall of Separation blog:
A Texas Supreme Court justice recently wrote a dissent arguing that it should be legal for government bodies to deny same-sex couples spousal benefits because— get this— it would “encourage procreation.”
The dissent followed the Sept. 2 Texas Supreme Court’s rejection of an appeal of a ruling that required provision of spousal benefits to same-sex couples. Justice John Devine, however, wanted to take the case and reverse the lower court’s ruling, which forbids the state from treating same-sex couples as second-class citizens.
“Marriage is a fundamental right. Spousal benefits are not,” Devine wrote. “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.”
Wait, what? Opposite-sex marriages are the only producers of biological children? That’s news to me. Has Devine really not heard of same-sex couples in this country who have biological children through various options? And what about adopted children whom both same-sex and opposite-sex couples must provide for? Are they less worthy of insurance or a financially secure future?
“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),” Devine continued. “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.”
Actually, no, it doesn’t explain why Texas should direct their resources only to opposite-sex couples. How can Devine argue that adopted children don’t lose dignity but at the same time urge the state to prioritize families that only consist of biological children? That not only hurts same-sex parents, but it hurts opposite-sex parents who adopt. The argument just doesn’t make any sense, to put it nicely.
Basically, if I follow Devine’s logic, opposite-sex couples who can’t or don’t intend to biologically procreate shouldn’t get spousal benefits either. Devine’s attempt to find a loophole for LGBTQ discrimination in Obergefell v. Hodges, which declared it unconstitutional nationwide under the Fourteenth Amendment to deny same-sex couples their right to marry, reeks of desperation.
Devine argues that “Obergefell concerned access to marriage, not an Equal Protection challenge to the allocation of employment benefits.” But he’s wrong again.
Obergefell clearly says that states can’t “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Hence the term “marriage equality.” Government-provided employment benefits are parts of the terms and conditions of marriages.
Perhaps my favorite part that perfectly sums up the absurdity of Devine’s argument is when he attempts to convince readers that discrimination is good for Texas procreation.
“Consider the State’s interest in encouraging procreation,” he wrote. “The State may well have believed that offering certain benefits to opposite-sex couples would encourage procreation within marriage.”
Yes, because most couples – opposite or same sex – have always been encouraged to have children based on the benefits their state gives them while denying it to others… right?
Follow Rokia Hassanein online at @rokiahass