–Texas Supreme Court Justice John P. Devine, in a dissent explaining why he believed the city of Houston had the right to deny spousal benefits to employees in same-sex relationships. Devine argues that Houston is still prohibited from offering benefits to same-sex couples by a state law that preceded the overturn of Texas’ ban on same-sex marriage. Devine says that the Texas Court of Appeals erred in assuming that because of the Supreme Court’s decision legalizing same-sex marriage, it had to extend equal benefits to same-sex married couples. He writes: “Marriage is a fundamental right. Spousal benefits are not. Thus, the two issues are distinct, with sharply contrasting standards for review. Because the court of appeals’ decision blurs these distinctions and threatens constitutional standards long etched in our nation’s jurisprudence, I would grant review.”
Devine also argues that even though spousal benefits are being denied, doing so does “not diminish any child’s inherent dignity,” as the city extends benefits to the children of its employees regardless of marital status. As long as the city or the state is not interfering with the ability of same-sex couples to obtain a marriage license, he argues, localities like the city of Houston are not required to provide equal benefits to all couples.
“At times, the State may rely on one characteristic — such as the opposite-sex nature of a marriage — as a proxy for other abilities — such as procreation within marriage — that relate to the State’s interests. It is enough that there is ‘a rational reason for the difference’ in treatment,” Devine writes. “If the government may extend benefits to some disabled persons but disqualify others based on who they marry, or provide survivors’ benefits to some widows who remarry but deny them to others, then surely the State may limit spousal employment benefits to spouses of the opposite sex. Only these spouses are capable of procreation within their marriage, and the State has an interest in encouraging such procreation.”
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