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Gay Man Denied Spousal Benefits Loses Challenge

JEFFERSON CITY, Mo. (CN) - The domestic partner of a state highway patrolman who was killed in the line of duty is not entitled to survivor benefits, the divided Missouri Supreme Court ruled.

Dennis Engelhard was killed in December 2009. Kelly Glossip, who had been Engelhard's domestic partner since 1995, applied to the state's retirement system for survivor's benefits. The application required Glossip to submit copies of his driver's license, a death certificate and a marriage license. Glossip submitted copies of his driver's license, Engelhard's death certificate and an affidavit that stated they were never married but had been together since 1995 and had held themselves out to family and friends as a couple in a committed, married relationship.

The state denied Glossip's application because it lacked a marriage certificate. Same-sex marriage is constitutionally banned in Missouri so the couple could not legally marry within the state.

Glossip filed suit, not challenging the state's ban on same-sex marriage, but challenging the law limiting survivor's benefits only to spouses and the law's definition of spouse as only a marriage between a man and a woman.

A Cole County judge dismissed the claim, and the state's high court affirmed in a 5-2 decision Tuesday.

The unsigned ruling states that Missouri did not exclude Glossip from marital benefits based on sexual orientation, but on marital status. Since Glossip had not challenged the state's ban on same-sex marriage, the court found he cannot use that ban to challenge the benefits law since that law also applies to unmarried opposite-sex couples.

"This case would require a different analysis if, as in the recent case of United States v. Windsor, 133 S. Ct. 2675 (2013), Glossip and Engelhard had been married under the law of another state or jurisdiction," the majority wrote.

In Windsor , a Supreme Court decision from June, the justices found that Section 3 of the Defense of Marriage Act unconstitutionally defined marriage as the union of one man and one woman.

Glossip failed to make that showing here, the Missouri high court found.

"In this case, Glossip is not eligible for survivor benefits because he was not married," the majority opinion states. "The question, then, is whether the state may constitutionally condition the receipt of benefits on marital status."

Limiting benefits to spouses also represents a reasonable attempt to help preserve state resources, according to the ruling.

"Here, the General Assembly apparently believed that limiting survivor benefit beneficiaries to a smaller class of people would preserve MPERS's limited resources," the justices wrote, abbreviating the Missouri Department of Transportation and Highway Patrol Employees' Retirement System.

"Given that choice, the General Assembly was free to limit survivor benefits to a sub-class of those people who depend financially on deceased employees - as long as that classification does not require heightened scrutiny and bears a reasonable relationship to legitimate state interests," they continued. "As discussed above, the spousal requirement is subject to rational basis review and is reasonably related to the purpose of assisting dependent persons. The cost savings realized by limiting survivor benefits to a smaller group of people, here surviving spouses and minor children, provides additional support for the statute's rationality."

Glossip also failed to show that the benefits law is an unconstitutional special law - a statute that applies to localities rather than the entire state, or benefits individuals instead of the general public.

"The survivor benefits statute is not facially special because the statute's spousal requirement creates an open-ended class: married couples," the court wrote. "This class is open-ended because persons may move in and out of the class in that highway patrol employees may marry and divorce and their spouses may predecease them. ... Glossip notes that Missouri prohibits same-sex marriage and, therefore, suggests that the category is close-ended. But, as previously discussed, Glossip has elected not to challenge the ban on same-sex marriage. 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. This claim is without merit."

Judge Richard Teitelman wrote the dissenting opinion in which he said the case called for intermediate-scrutiny review because of the age-old discrimination against gays and lesbians.

"In one sense, the principal opinion is correct," Teitelman wrote. "The statutes do draw a distinction on the basis of marital status. This distinction, however, is drawn in a context in which same-sex couples are barred from marriage by the state constitution, a state statute provides that any same-sex marriage is a legal nullity, and section 104.012 defines a 'spouse' as including only a marriage between a man and a woman. 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. ... Under these circumstances, there is no plausible way to conclude that sections 140.104.3 and 104.012 draw a distinction only on the basis of marital status and are somehow neutral on the issue of sexual orientation. Instead, it is clear that the statutes necessarily operate to the unique disadvantage of gays and lesbians precisely because of their sexual orientation. To conclude otherwise is akin to arguing that a statute that eliminates health benefits only for those who may have a child with sickle cell anemia is not discriminatory because it draws a distinction solely on the basis of a medical condition rather than on the basis of race. 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."

Chief Justice Mary Russell and Judges Patricia Breckenridge, Zel Fischer, Laura Denvir Stith and Paul Wilson made up the majority opinion. Judge George Draper III concurred with Teitelman.

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