Texas Supreme Court Justice John Devine is doing his best to weaken Obergefell v. Hodges, the US Supreme Court case that made marriage equality legal in all 50 states.

In a dissenting opinion of the review of Pidgeon and Hicks v. Mayor Sylvester Turner and City of Houston, the judge argued  anti-LGBTI discrimination could be valid when benefits are involved.

‘Marriage is a fundamental right,’ the judge wrote in his solo opinion, according to Slate. ‘Spousal benefits are not.’

According to the justice, a state could deny insurance to same-sex couples that is given to opposite-sex couples. The reason? Procreation.

‘…Offering certain benefits to opposite-sex couples would encourage procreation within marriage,’ 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. 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,’ he continued. ‘But it does explain why the State might choose to direct resources to opposite-sex couples.’

Devine’s fellow justices found no merit in this argument. They left alone a lower court ruling that the government requires compelling reasons to discriminate against LGBTI couples.

His opinion is not that surprising. As a lower court judge, Devine did not remove a painting of the Ten Commandments from his courtroom and has spoken at anti-abortion rallies.