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The Circular Argument that Stopped a Gay Man Winning Equal Rights

The Circular Argument that Stopped a Gay Man Winning Equal Rights

The Missouri state supreme court has confounded LGBT rights campaigners by deciding that a ban on gay people accessing survivorship benefits doesn’t add up to anti-gay marriage discrimination in a case that starkly demonstrates that the battle for marriage equality isn’t over yet.

It was on Christmas Day 2009, when Highway Patrol Cpl. Dennis Engelhard was hit and killed by a vehicle while investigating a road traffic accident in St. Louis, Missouri.

As he died in the line of duty, Missouri law says that his surviving spouse should be given survivor benefits which add up to 50% of Engelhard’s annual salary. This kind of pension is provided so that his spouse can deal with the expenses and monetary burdens that arise as a result of losing a partner, such as mortgage payments and child rearing costs.

Except the state denied those benefits in this case. Why? Because Engelhard had been in a nearly 15 year committed relationship with Kelly Glossip, another man whom state law prevented him from marrying.

Seeing this as an injustice, Kelly, represented by the ACLU, sued the Missouri Department of Transportation and Highway Patrol Employees’ Retirement System. The case was framed very carefully. Kelly wasn’t challenging Missouri’s 2004 constitutional amendment that bans same-sex marriage and all partnership recognition for same-sex couples, only the statute that limits survivor benefits to heterosexual couples, with Kelly arguing that their relationship fulfilled all the applicable criteria except the marriage status that state law denies them anyway.

The Missouri Department of Transportation and Highway Patrol Employees’ Retirement System defended the block on gay survivor benefits, claiming that there is no specific violation of the equal protection clause of the state constitution because the constitution defines marriage solely as between a man and a woman.

This past week, the Supreme Court of Missouri in a 5-2 decision affirmed a lower court ruling that in the eyes of Missouri law the couple’s relationship means nothing and, what’s more, that no anti-gay discrimination had taken place at all.

“If Glossip and the patrolman had been of different sexes, Glossip would have still been denied benefits no matter how long or close their relationship had been,” the majority opinion says. “The result cannot be any different here simply because Glossip and the patrolman were of the same sex. The statute discriminates solely on the basis of marital status, not sexual orientation.”

The court went on to say that Glossip could have challenged the state’s marriage equality ban if he wanted to test the right to marriage equality but because he didn’t, the state was well within its rights to deny survivor benefits.

A  Shameful Circular Argument

However, while it is technically true that the survivorship statute only reflects the state’s marriage law, it is disingenuous to the point of absurdity to claim no anti-gay discrimination is at play in this case.

Glossip and Engelhard could not marry precisely because the state prevents them from doing so by discriminating on the grounds of their gender and sexual orientation. The marital status discrimination is built on sexual orientation discrimination and they couldn’t remedy it even if they had wanted to: they needed to have married to access survivor benefits but couldn’t marry because the state doesn’t recognize same-sex marriages. They are therefore barred at every turn.

Furthermore, had Glossip and Engelhard married in another state, Missouri still would not have recognized that marriage and therefore it would have changed absolutely nothing for Glossip in terms of this particular challenge. To fail to recognize this fact borders on an absurd, even callous, denial of reality and it is something that Justice Richard B. Teitelman pointed out in his biting dissent, adding that this ruling adds to a “shameful” history of anti-gay discrimination in the state.

“The plain meaning and intended application … is to specifically discriminate against gay men and lesbians by categorically denying them crucial state benefits when their partner dies in the line of duty,” Teitelman said. “This type of intentional, invidious and specifically targeted discrimination is fundamentally inconsistent with the constitutional guarantee of equal protection under the law. … [State law] operates to the unique disadvantage of gay men and lesbians, even when, like Corporal Engelhard, they devote their lives to the defense of the same rule of law that relegates them to the status of second-class citizens.”

In the wake of the Supreme Court of the United States ruling striking down DOMA Section 3, the ban on federal recognition for same-sex marriage, we have seen largely positive news on the marriage equality front, with a number of states either legalizing or looking to legalize marriage equality.

This case, which was also reviewed in light of the DOMA ruling, serves as a reminder that there are still real and significant burdens placed on same-sex couples who are not living in states where the courts are willing to read the law in light of the evolving pr0-LGBT legal landscape. This is why a federal bill like the Respect for Marriage Act that affirms the right to marriage equality is so vital.

As for Glossip, his state battle has now run its course and with no remedy. However, a federal suit specifically taking aim at the state’s gay marriage ban would appear warranted, and given the cognizable harm the state’s denial of benefits has caused Glossip, there is reason to think that such a case could have merit.

Of course none of that can erase  the hurt of being told that a near 15 year relationship means nothing to your home state when your partner gave his life serving those that would deny your relationship the recognition it deserves.

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Photo credit: Thinkstock.

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48 comments

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8:12PM PST on Nov 12, 2013

And Missouri shows it's as ignorant as Tennessee. Way to go!

8:57PM PST on Nov 11, 2013

Round and round the Right goes never learning.

7:32PM PST on Nov 11, 2013

Since Missouri has made legal discrimination the "law of the land" in their state, it makes sense that they would deny it is discrimination. Would you expect anything different when you incorporate discrimination as part of their state constitution.

7:40AM PST on Nov 11, 2013

This situation, where someone "can't win for losing", is sadly common where the law is self-contradictory. It's wrong to accept a law that hurts law abiding citizens (especially minorities), just because the person or someone they know isn't gay/lesbian, or otherwise minority. I would think the Federal laws against discrimination would come into play in a situation like this, as it specifically applies to a place of work.

Of course, I'm not a lawyer, but one shouldn't have to be to look at the situation and apply some common sense. Sadly, in scenarios where "the other" (not like those making the decision) is an issue, common sense often seems in short supply.

My sympathy goes out to Mr. Glossip, and I hope he finds some justice (or at least whatever might pass for it).

3:22PM PST on Nov 10, 2013

Mark S. is right, even if this case is utterly unjust from a moral point of view, it proofs the rigidness of the legal way of thinking, the law is the law, and even if this "law is the law"concept leads to an unjust outcome, the law should be applied.

Time to change the law!

Maybe there would have been another outcome with another approach, another lawsuit, but unmarried equality.... that meant in this state "no survivor benefit".

Sad.

Condolences to Kelly Glossip

8:18PM PST on Nov 9, 2013

Thanks

11:44AM PST on Nov 8, 2013

that is soooo unfair feels like at kindergarden!!

12:50AM PST on Nov 8, 2013

Actually the court found the that the claim is without merit because Glossip and Engelhard never married in another state that recognizes same-sex marriage, nor did they attempt to challenge Missouri’s ban on same-sex marriage. It wasn't one judge, it was a 5-2 decision. And actually the benefits he is looking for is 28,000 per year, not a 1 off payment.

9:27AM PST on Nov 7, 2013

Missouri officials are living in the dark ages. They are Wrong.

12:33AM PST on Nov 7, 2013

If Kelly had gone through sexual reassignment, I wonder if MO would have allowed them to marry? Not that this should be a necessary choice just to marry someone you love. But I once knew a beautiful dancer who had once been a high school basketball star, as a Jewish boy, and after she went through reassignment surgery, CA issued her a new Birth Certificate which listed her as female. She was my friend for over a year, and a roommate for about 3 months during the time I knew her. She had a beautiful face and figure, a terrific sense of humor, and made her living, dancing. I lost touch with her when I moved from one apartment building to another in 1983; I wish I could find her, and see her again. I've missed her laughter.

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