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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