Idiot du Jour

By way of introduction, please note the following:

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Apparently, someone skipped class the day that amendment was discussed. From Mark Joseph Stern at Slate:

On Friday, the Texas Supreme Court refused to review a lower court ruling holding that cities may not deprive married same-sex couples the benefits it provides to opposite-sex couples. The court’s decision leaves in place a pro-equality ruling that forbids the government from discriminating against gay people for no good reason. But one judge, Justice John Devine, argued that his court should have taken the case and reversed the lower court’s judgment. His opinion is an ominous sign that conservative judges are striving to work around Obergefell v. Hodges and affirm the constitutionality of state-sponsored anti-gay discrimination.

Devine is clearly no fan of Obergefell, and his dissent attempts to minimize that decision to an almost dishonest degree. “Marriage is a fundamental right,” Devine wrote. “Spousal benefits are not.” Devine insisted that Obergefell’s affirmation of same-sex couples’ constitutional right to wed does not preclude Texas from discriminating against married, same-sex couples in other ways. Obergefell, the justice argued, was strictly limited to gay people’s fundamental right to marry. So long as a state does not revoke that right, it can deprive same-sex couples of other benefits guaranteed to opposite-sex couples. Specifically, Devine wrote, the government can refuse to give spousal benefits to its gay employees because they are gay.

Turns out it's all because marriage is for procreation. But you don't need a license to make babies, which, considering Justice Devine is from Texas, he should know.

I'm not going to get into all the usual arguments about sterile heterosexual couples, couples past childbearing age, couples who choose not to have children, because, quite frankly, they're beside the point: marriage is and always has been a public agreement between two persons (although in the past, it's been more between two families than two individuals) to undertake certain rights and responsibilities toward each other. Or, in my favorite definition, "Marriage is the recognition by the community of the establishment of a new household."

Now, as to Justice Devine's ridiculous assertion that marriage benefits are not a constitutional right:

The justice utterly overlooks the fact that Obergefell, like Windsor, has an Equal Protection component that is critical to its holding. In Obergefell, the court wrote that states may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Devine insists that the “terms and conditions” of marriage are nothing more than the laws governing marriage, like minimum age statutes and bigamy bans.

That is really quite absurd. As every other court to consider the issue has recognized, this provision of Obergefell requires states to extend the same benefits to married same-sex couples that it does to married opposite-sex couples. That, at a bare minimum, is what Obergefell’s Equal Equal Protection analysis obviously requires.

Devine's reading of "terms and conditions" is so obviously self-serving that I don't even need to point it out. It also goes without saying that there's an agenda here, and it's not concerned with liberty and justice for all. Stern is quite rightly concerned about judges trying to work around Obergefell, and it's not just judges -- we already have too many examples of "conservative" (and what a travesty the conservative movement has become) legislators and state officials trying to chip away at marriage rights: in their minds, if no one else's, marriage equality is equivalent to abortion and women's reproductive rights. They'll keep chipping away at Obergefell, the same way they have at Roe v. Wade, and they'll find reactionary judges to support them.

Fasten your seatbelts -- it's going to be a bumpy ride.