Group eyes more legislative involvement

Disappointment with court ruling could lead to more active lobbying

PROMO called last Tuesday “a difficult day for equality and justice in Missouri.”

On its Facebook page, PROMO notes it is a statewide group that advocates “for lesbian, gay, bisexual, and transgender equality through legislative action, electoral politics, grassroots organizing, and community education.”

The group was unhappy with the Missouri Supreme Court’s 5-2 ruling last week, upholding the Transportation Department and Highway Patrol Employees Retirement System’s decision to reject Kelly Glossip’s request for survivor benefits, after Glossip’s partner — Highway Patrol Cpl. Dennis Engelhard — was killed in the line of duty on Christmas Day 2009.

In a 20-page “per curiam” opinion not credited to any specific author, the five judges ruled Glossip “is not eligible for survivor benefits because he was not married to the patrolman,” and the state laws limiting those benefits to the “surviving spouse or surviving minor children” are within the “General Assembly’s right to award and deny survivor benefits based on whether the claimant was married ... at the time of death.”

The five-judge majority specifically noted Glossip’s argument — that he was denied the survivor benefits because he and Engelhard were in a “same-sex” relationship and “did not marry because Missouri law prohibits same-sex marriage” — was not the issue before the court.

“The benefits statutes that Glossip challenges do not prohibit same-sex marriage,” the court wrote. “That ban is in Missouri’s constitution, and Glossip expressly does not challenge it.

“Accordingly, he cannot use that ban as support for his challenge to the benefits statutes, which discriminate on the basis of marital status,” and the challenged statute “is constitutional because it is reasonably related to a legitimate state interest in efficiently assisting some of the people who are financially dependent on deceased patrolmen.”

Glossip had challenged two parts of the state laws affecting the “Retirement of State Officers and Employees.”

One limits the survivor’s benefit recipients: “No benefit is payable pursuant to this section if no eligible surviving spouse or children under twenty-one years of age survive the member.”

The second, added in 2001, says: “For the purposes of public retirement systems administered pursuant to this chapter, any reference to the term ‘spouse’ only recognizes marriage between a man and a woman.”

Glossip argued both violate the “equal protection” clauses of both the U.S. and Missouri constitutions.

The five-judge majority disagreed, but former Chief Justice Richard Teitelman wrote, in a 12-page dissenting opinion, that Glossip is being hurt by unconstitutional discrimination: “For decades, 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 plain meaning and intended application of (the challenged laws) is to discriminate specifically 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 under the law.”

Judge George Draper joined in Teitelman’s dissent, which compared the court majority’s decision to previous rulings by various courts that allowed segregated, “separate but equal” schools and public facilities; prohibited interracial marriage; and said that “males must be preferred to females” when appointing the administrator of an estate.

All eventually were overturned by the U.S. Supreme Court, Teitelman noted: “With the benefit of hindsight, the various decisions extending the guarantee of equal protection to racial minorities and women, though intensely controversial at the time, now seem obvious to a vast majority of Americans.”

Although the court released its ruling Tuesday, its rules allow for some legal procedures before the ruling becomes official and required of all courts in the state.

Anthony Rothert, legal director for the American Civil Liberties Union of Eastern Missouri, helped represent Glossip at the Cole County Circuit Court and Supreme Court levels.

“We do not know yet whether we will be asking the Supreme Court for rehearing,” he told the News Tribune in an e-mail last week. “This litigation did not make any claims under federal law, so Tuesday’s unsigned opinion cannot be appealed to the Supreme Court of the United States.

“We are not prepared to say what the next steps will be, other than that there will be next steps.”

While same-sex marriage supporters in Missouri have talked about needing to change state laws, an online search of bills introduced to the Legislature since 2000 shows none were offered to allow same-sex marriages.

But, at least 14 measures were proposed limiting Missouri’s approved definition of marriage as being only between one man and one woman.

In 2004, lawmakers placed that idea on the Aug. 3 primary election ballot — and more than 70 percent of the voters casting ballots endorsed the limit: 1,055,771 voters approved the amendment to Missouri’s Constitution, while only 439,529, or 29.4 percent of the total votes cast, voted against it.

The secretary of state’s office said 4,194,146 people were registered voters that year.

Rothert said: “Long before (last) week’s court decision, it was the legislature that failed Corporal Engelhard and Mr. Glossip, and others who enforce the laws, even though the law treats them as second-class citizens.

“No one can read the court’s opinion without realizing that Missouri discriminated, plain and simple, to the detriment of a survivor of a state trooper who gave his life in the line-of-duty.”

The ACLU-EM has asked supporters to send Patrol Superintendent Ron Replogle a message, asking that the Patrol’s online memorial for fallen troopers be updated, so that Engelhard’s information will “show that Dennis is survived by his life partner and stepson.”

Meanwhile, Rothert suggested, supporters will be lobbying the Legislature.

“That discrimination was enacted by the legislature and certainly the legislature should eliminate it,” he said.

And without listing specifics, the group, PROMO, said on its Facebook page: “We vow that the fight will continue.”

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