JEFFERSON CITY — Same-sex marriage is banned by the Missouri Constitution, but a state Supreme Court case argued on Wednesday has the potential to offer a small form of recognition for some gay couples.
At issue is a routine benefit paid to the surviving spouse of a fallen public safety officer. Under current law, the benefit can only go to a spouse who is in a "marriage between a man and a woman."
The case comes just a month before the U.S. Supreme Court is scheduled to hear arguments on whether a California law with the same marriage definition violates the equal protection clause of the U.S. Constitution.
Kelly Glossip is suing the Missouri Department of Transportation and the Missouri State Highway Patrol. He argues that the relationship with his partner, Dennis Engelhard, should entitle him to the state's survival benefits. Engelhard was hit and killed by a vehicle while investigating an accident in 2009.
"Dennis gave his life protecting Missouri, and nothing can bring him back. But the state should honor his service by offering his family the same protections it provides to the spouses of other fallen troops," Glossip said in a written statement released by the American Civil Liberties Union of Eastern Missouri.
Missouri law entitles surviving spouses to receive an annuity equal to 1.6 percent of the average compensation of officers multiplied by their years of service. Glossip did not receive those benefits, because the state law says they can only be paid to spouses and dependent children. His lawsuit was originally dismissed in Cole County Circuit Court and is being heard on appeal by the Supreme Court.
Glossip's attorney, Maurice Graham, told the high court that Missouri's definition of spouse in the death benefits law violates the constitution. The current definition was passed by the legislature in 2001.
"They made it clear that gay people committed like Dennis and Kelly were not under any circumstances going to get death benefits," Graham said.
In 2004, Missouri voters approved a constitutional amendment that defined marriage as a union between a man and a woman.
Assistant Attorney General James Ward told the court the legislature had a "rational basis" in limiting surviving benefits to heterosexual couples. He argued that the legislature could pass laws to preserve limited retirement resources for those most likely to be economically dependent on a deceased member and, therefore, have a basis to deny Glossip's benefits.
He also said the legislature was trying to control the cost of the benefit program when passing the 2001 law. But that assertion was questioned by one of the high court's members.
"What if the state said we aren't going to allow benefits to people over 5 feet tall? That would save money," Chief Justice Richard Teitelman said.
Several current and former Democratic state lawmakers joined St. Louis Mayor Francis Slay and U.S. Rep. Lacy Clay in filing a "friend of the court" brief for the case. They argue that Glossip is entitled to survival benefits. Sen. Maria Chappelle-Nadal, of University City, said she joined the brief at the request of her constituents.
"I have a fundamental belief that when you are in a shared relationship there should be benefits with that," she said.
Some of the judges asked how the Missouri case would relate to the upcoming federal decisions on gay marriage. Graham said the U.S. Supreme Court's ruling could give "guidance" to Missouri, but he added the state court has enough information to make a determination and would not need to wait.