Texas Justice John Devine

If you are like us here at the Law Blogger in our post-Obergefell world, you may be thinking that the battle for marital equality was resolved a bit too swiftly and easily. Well, hold onto your hat because here comes the fall-out.

Disputes over how far the newly-minted marital equality right should go will likely be fought in the equal protection context. A plethora of state and local laws are on the books -or will be passed in the upcoming years- that are designed to limit marital equality.

For example, Justice John Devine of the Texas Supreme Court wrote a strong dissenting opinion last week in an application for leave to appeal, stating that while marriage is a fundamental constitutional right, spousal benefits for [same-sex] married employees are not.

His dissent arose in a case that challenged a City of Houston charter provision that provided for spousal benefits to same-sex couples despite a state law prohibiting such benefits. Apparently, the law has not been wiped-off-the-books yet in Texas despite the SCOTUS Obergefell ruling.

The plaintiffs in the Texas lawsuit sought to enjoin the City of Houston from granting spousal benefits to employees with a same-sex spouse that were married in any state other than Texas. The trial court granted a temporary injunction against the city but the intermediate appellate court reversed on the basis of Obergefell.

While the Texas Supreme Court declined to grant leave for further appeal, Justice Devine had this to say about the appellate judges deciding the case:

Without substantial discussion or analysis, the court of appeals assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses.

Justice Devine interprets Obergefell narrowly, opining that so long as a state law does not prohibit a same-sex couple from marrying, it can discriminate against such couples in any number of other ways. According to Justice Devine, laws affecting our fundamental rights receive "strict scrutiny" on appellate review; laws that do not impact a fundamental right are given more deference on review.

The analysis bleeds into the debate about the roles of the various branches of government: making laws, enforcing the laws, and interpreting laws. In this case, the question posed is: whether there is a legitimate state interest in classifying married couples by their gender in the context of government employee benefits.

In his dissenting opinion, Justice Devine points to the legitimate governmental interest in procreation as a basis for upholding the Texas law. He states:

Consider the State’s interest in encouraging procreation. The State may well have believed that offering certain benefits to opposite-sex couples would encourage procreation within marriage. 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. 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). 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. 

If a rationale-basis review is used -rather than strict scrutiny- then Justice Davis thinks the Texas law prohibiting employment benefits to same-sex spouses passes constitutional muster. Is he following the law handed down by the United States Supreme Court, or his own personal convictions?

Fortunately, the SCOTUS decisions in both Obergefell and Windsor contain robust equal protection components that require states to provide the same benefits to same-sex couples as they do for heterosexual couples.

This type of challenge to the variety of gender-based state and federal laws can be expected to take a quarter century to play out in the courtrooms across the country. In this case, the dissent, written by a justice -a married father of six- who was sued in 2004 for refusing to remove a painting of the Last Supper from his courtroom, expresses a personal conviction; it is not a statement of the law.

As this civil rights struggle continues, we will continue to report on the battles.

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