Missouri law provides that the surviving spouse of a public employee who is killed in the line of duty be entitled to a death benefit equal to half of the deceased employee’s final average compensation. The statute, adopted in 1969, did not define “spouse,” but was supplemented in 2004 with a definition of “spouse” in accord with the newly-enacted state constitutional amendment banning same-sex marriage.
When a Missouri state highway patrolman, Corporal Dennis Engelhard, was killed in the line of duty on Christmas Day, 2009, his surviving same-sex partner, Kelly Glossip, applied for the death benefit, but was turned down on the ground that he was not married to Engelhard. Of course, he could not be married to Engelhard in Missouri, where a constitutional amendment and a statute provide that same-sex marriages are neither valid nor recognized in the state. On October 29, the Missouri Supreme Court, voting 5-2, rejected Glossip’s claim that denial of the benefit violated his right to equal protection of the law in Glossip v. Missouri Department of Transportation, 2013 Westlaw 5799911. The court noted several times in its opinion that Glossip was not directly challenging the anti-gay marriage amendment or statute, and was not arguing that the state’s definition of “spouse” was unconstitutional. His argument was that requiring a person to be a legal spouse in order to qualify for the benefit was itself a form of unconstitutional sexual orientation discrimination.
The majority of the court, issuing an unsigned per curiam opinion, said that this was not a sexual orientation discrimination case. The court pointed out that neither the sex nor sexual orientation of the surviving partner of a law enforcement officer was directly relevant under the benefits provision. The only relevant fact, according to the court, was whether at the time the officer died he was married to the benefits claimant. An unmarried partner of either sex would be equally disqualified from receiving the benefit, regardless of their sexual orientation. Having reached this conclusion, the court treated this as a case of differential treatment because of marital status, a ground whose legitimacy as a basis for government policy has rarely been successfully challenged.
Finding that a marital status distinction is entitled to a presumption of constitutionality and will only be invalidated if the legislature could have had no rational basis for imposing such a distinction, the court identified several possible justifications for limiting the survivor’s benefit to legal spouses. “Here, the General Assembly reasonably concluded that limiting survivor benefits to spouses would serve the death benefit’s intended purpose as well as the interests of administrative efficiency and controlling costs,” wrote the court. “Providing survivor benefits to persons who are economically dependent on a deceased state employee is a legitimate state interest, and the General Assembly could have reasonably concluded that the spousal requirement would serve that purpose.” In a “rational basis” review case, there does not have to be an exact fit between the purpose and the mechanism adopted by the state to achieve it. “It may be true,” the court commented, “that there are spouses of highway patrol employees who are not economically dependent on the employee and that there are non-spouses who are economically dependent on the employee. Rational basis review, however, does not require that the fit between the classification and government interest be exact, but merely ‘reasonable,’ and this Court will not substitute its judgment for that of the legislature as to the wisdom, social desirability or economic policy underlying a statute.”
The court pointed out that it was administratively efficient to condition the benefit on the survivor presenting proof of marriage, making unnecessary any sort of case-by-case factual inquiry into whether a non-marital claimant was actually dependent on the employee. The legislators “could have reasonably anticipated that expanding survivor benefits beyond surviving spouses and surviving children could create a risk of competing claims and subjective eligibility determinations and that such claims would increase the time and cost necessary to resolve benefits claims.”
The court rejected Glossip’s argument that the “spousal requirement must fail even rational basis scrutiny because the statute was motivated by a desire to harm gays and lesbians,” pointing out that the statute was enacted in 1969, long before Missouri had adopted its statute and constitutional amendment banning same-sex marriage, at a time when no claim for a right to same-sex marriage had ever been made in the state. The court pointedly quoted from U.S. Supreme Court Justice Anthony Kennedy’s statement in this year’s ruling in U.S. v. Windsor that “it seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization,” to further make the point that it was unlikely that the 1969 Missouri legislature had a specific intent to harm gay people by adopting this provision.
The court also rejected Glossip’s argument that the survivor benefits statute was a prohibited “special law,” under a provision of the state constitution that prohibits the legislature from enacting “special laws” when a general law can be made applicable to a particular situation. A general law providing survivors benefits to dependents could cover this situation, argued Glossip, so limiting the benefit to surviving spouses was a forbidden instance of special legislation.
The court suggested the possibility that the outcome of this case could have been different had Glossip decided to take on directly the constitutionality of Missouri’s marriage amendment and statutory same-sex marriage ban, or if he and Engelhard had married out of state and he was now arguing that their marriage should be recognized by Missouri for this purpose. Without hinting at how such claims might be decided, the court indicated that they would have squarely raised the issue of sexual orientation discrimination.
As to that, the court pointed out that Missouri precedents dictate applying the U.S. Supreme Court’s equal protection analysis under the 14th Amendment to any equal protection issue raised under the parallel provision of the Missouri Constitution, which would require the court to treat U.S. v. Windsor as a controlling precedent. “The United States Supreme Court left open the question of what level of scrutiny should apply to sexual orientation discrimination in Windsor,” said the court. “There, as in Lawrence v. Texas, it took a tangential approach to the constitutionality of the challenged statute and held that the statute failed even the most deferential level of scrutiny. Neither of these cases identified what level of scrutiny applies to cases alleging discrimination based on sexual orientation. This Court also need not reach that issue here because the survivor benefits statute does not discriminate on the basis of sexual orientation, and Glossip has elected not to challenge Missouri’s statutory and constitutional proscription against same-sex marriage.”
Writing for himself and Justice Draper, Justice Richard B. Teitelman dissented, arguing that the court had mischaracterized this case. “For decades,” he wrote, “indeed centuries, gay men and lesbians have been subjected to persistent, unyielding discrimination, both socially and legally. That shameful history continues to this day. The statutes at issue in this case, sections 104.140.3 and 104.012, RSMo Supp. 2001, bear witness to that history and help ensure that this unfortunate past remains a prologue to the continued state-sanctioned marginalization of our fellow citizens. The plain meaning and intended application [of these statutes] 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. This type of intentional, invidious and specifically targeted discrimination is fundamentally inconsistent with the constitutional guarantee of equal protection of the law.”
Teitelman criticized the court’s holding as overlooking “the fact that section 104.140.3 employs a definition of ‘spouse’ that 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.”
Taking on the majority’s conclusion that this is merely a marital status discrimination case, Teitelman criticized the majority’s failure to consider the context and effect of its ruling. “By tying the payment of survivor benefits to a definition of ‘spouse’ that renders access to those benefits legally impossible to obtain only for gays and lesbians, the purported marital distinction is also necessarily a distinction based on sexual orientation,” he asserted. “At some point, equal protection analysis requires an assessment of the practical reality of the case. In this case, the reality is that Mr. Glossip’s sexual orientation made it legally impossible for him to obtain survivor benefits.” Thus, the challenged statutes “turn the legal status of marriage into a proxy for discrimination on the basis of sexual orientation.”
Furthermore, he wrote, “The fact that the State does not recognize same sex marriages does not mean that gays and lesbians are deprived of their other fundamental individual constitutional rights. Nothing in the short, simple text of article I, section 33 [the state’s marriage amendment] in any way overrides the separate constitutional guarantee of equal protection by justifying other forms of discrimination on the basis of sexual orientation.” Teitelman went on to argue that this should be a heightened scrutiny case in light of the “historic patterns of disadvantage” suffered by gay people at the hands of the state, and that the statutes would not withstand such heightened scrutiny. He found it “implausible” to argue that limiting benefits to legal spouses “will ensure that benefits are payable only to those who are most financially dependent on the deceased trooper.” He pointed out that the state had conceded that Engelhard and Glossip were financially interdependent. “Marriage simply cannot be a proxy for financial interdependence,” he insisted, “when only gays and lesbians – a relatively small, readily identifiable and historically marginalized group – are categorically excluded from being legally married.”
Because the decision was grounded by the majority of the court in its interpretation of the state constitution, further review by the U.S. Supreme Court appears unlikely, although, in light of U.S. v. Windsor, Glossip could mount a plausible argument that the denial of benefits violates his right to equal protection under the 14th Amendment. Since the Missouri Supreme Court construes the state’s equal protection clause to be coextensive with the federal equal protection clause, one might treat this as a ruling under both provisions, raising a potential federal constitutional question. Were the Supreme Court inclined to take on a new gay equal protection case so soon after Windsor, this could provide a vehicle for doing so outside of a direct challenge to a state’s decision to exclude same-sex couples from marriage.
Glossip is represented by a large team of Missouri lawyers together with staff and cooperating attorneys from the ACLU and Lambda Legal. The court received amicus briefs from a group of Missouri law professors, from a group of elected Missouri officials, and from The Law Enforcement Gays and Lesbians (LEGAL) International (whose brief was written by attorneys from the Chicago office of Lambda Legal).