Stand with Sam: Missouri, survivor benefits, and discrimination against same-sex couples.

• Author: Hall, Lesley A.
• Position: First openly gay National Football League player Michael Sam

Glossip v. Missouri Department of Transportation and Highway Patrol Employees ' Retirement System, 411 S.W.3d 796 (Mo. 2013).

1. INTRODUCTION

   "Michael, are you a gay man?" asked Chris Connelly, ESPN's Outside the Lines host. (1) "I am a gay man," Michael Sam responded, "And I'm happy to be one." (2) On February 9, 2014, Michael Sam garnered the University of Missouri ("Mizzou") football team international attention--but this time, it was not because of his skills as Mizzou's All-American defensive lineman and the Associated Press's SEC Defensive Player of the Year. (3) Michael was the first NFL-bound collegiate football player to openly state he was gay before the NFL draft. (4) "I understand how big this is.... [I]t's a big deal. No one has done this before. And it's kind of a nervous process, but I know what I want to be.... I want to be a football player in the NFL." (5)

   Michael Sam's proclamation of his sexuality has been met with enthusiastic support and harsh criticism. Many supporters, including many Mizzou students, formed a human wall around Mizzou Arena to block members of the Westboro Baptist Church, which had come to protest Michael Sam's homosexuality. (6) However, others were not so enthusiastic. New York Giants cornerback Terrell Thomas said, "I think society is ready for [an openly gay NFL football player] and America's ready for it, but I don't think the NFL is." (7) Even fiercer was Gordon Klingenschmitt, a.k.a. "Dr. Chaps," a former Navy chaplain, who denounced Sam in a recent episode of his "Pray In Jesus' Name" program: "It's a tragedy every time somebody comes out of the closet.... [I]t's not something to be celebrating." (8)

   The sad irony was that Michael Sam felt compelled to admit his sexual orientation to the world, fearing "how many people knew," and that he would suffer retaliation for it. (9) Michael is not alone; many gay and lesbian individuals fear "coming out" to friends, family, and co-workers because they are afraid of the possibility of retaliation, harassment, isolation, or worse. (10)

   In Glossip v. Missouri Department of Transportation and Highway Patrol Employees' Retirement System, (11) the Supreme Court of Missouri perpetuated these fears. The court refused to identify sexual orientation as a classification worthy of heightened or "intermediate" equal protection scrutiny, (12) signaling to Missourians that homosexuality is still something to discount, fear, and hide. The holding also erroneously deprived Kelly Glossip of Corporal Engelhard's survivor benefits after Engelhard, his partner of many years, was killed in the line of duty. (13) This Note discusses the resolution of this case and analyzes why the court's holding demonstrates a regressive step for gays and lesbians in Missouri and elsewhere. Part II analyzes the facts and holding of Glossip. Part III discusses the Missouri Constitution's Equal Protection Clause, sexual orientation and federal jurisprudence, and Missouri's statutory and constitutional bans on same-sex marriage. Part IV examines the Supreme Court of Missouri's rationale in Glossip, including Judge Teitelman's dissent. Part V analyzes why the majority erred in determining that the Missouri survivor benefits statute discriminated against non-married couples, when the discriminatory characteristic was clearly sexual orientation. This Note ends by explaining that sexual orientation should receive heightened or "intermediate" scrutiny, under which the Missouri survivor benefits statute would have been held to have violated Glossip's rights under the Equal Protection Clause of the Missouri Constitution.

2. FACTS AND HOLDING

   Corporal Dennis Engelhard, a Missouri State Highway Patrol veteran, was killed "in the line of duty" on December 25, 2009. (14) Appellant Kelly D. Glossip was Engelhard's surviving same-sex partner. (15) After Engelhard's death, "Glossip applied to the Missouri Department of Transportation and Highway Patrol Employees' Retirement System ("MPERS") for survivor benefits" under Missouri Revised Statutes Section 104.140(3). (16) He then "submitted his driver's license, Engelhard's death certificate, and an affidavit," stating that he and Engelhard "had cohabited in a same-sex relationship since 1995." (17) The affidavit further stated that they held themselves out to friends and family as a couple in a committed marital relationship, and would have married had Missouri law permitted them to do so. (18) MPERS denied Glossip's application for survivor benefits, claiming that he and Engelhard lacked a marriage certificate. (19) Glossip unsuccessfully appealed the denial to the MPERS Board of Trustees. (20)

   Glossip then filed a petition requesting declaratory and injunctive relief in the Circuit Court of Cole County. (21) He argued that the survivor benefits statute and Missouri Revised Statutes Section 104.012 violated the Missouri Constitution's Equal Protection Clause because he was excluded from survivor benefits for his sexual orientation. (22) MPERS moved to dismiss Glossip's amended petition on the ground that it failed to state a claim for which relief could be granted, and Glossip moved for summary judgment. The trial court granted MPERS's motion to dismiss. (23)

   Glossip appealed, and on October 29, 2013, the Supreme Court of Missouri granted transfer and held that Missouri's survivor benefits statute did not impermissibly discriminate against Glossip because it required him and Engelhard to be married; thus, Glossip could not receive the spousal benefits because he and Engelhard were not married when Engelhard died. (24) The court applied rational basis scrutiny to the survivor benefits statute and held that Missouri's interests in providing benefits to economically dependent surviving spouses, controlling costs, and efficient administration satisfied the Missouri Constitution's Equal Protection Clause because these were legitimate state interests. (25) Judge Teitelman wrote the dissenting opinion. (26)

3. LEGAL BACKGROUND

   To provide a sufficient legal context, this Note discusses both the constitutional issues presented in Glossip and the statutes at issue. First, Section A discusses the Missouri Constitution's Equal Protection Clause and its various levels of scrutiny. Next, Section B discusses the Supreme Court of the United States' constitutional decisions regarding sexual orientation, and Section C discusses the Missouri Constitution's prohibition on same-sex marriages. Then, Section D discusses Missouri's Survivor Benefits statute. Finally, Section E discusses Missouri's statutory proscription of same-sex marriages.

   1. The Missouri Constitution's Equal Protection Clause

      The Missouri Constitution and the U.S. Constitution each contain equal protection clauses. (27) The Missouri Constitution's Equal Protection Clause has been construed to be coextensive with its federal counterpart, but Missouri courts are reluctant to extend the state's Equal Protection Clause beyond the scope of the Fourteenth Amendment. (28) Article I, Section 2 of the Missouri Constitution states as follows:

      That ... all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law, that to give security to these things is the principal office of the government, and that when government does not confer this security, it fails its chief design. (29) Article 1, Section 2 of the Missouri Constitution guarantees that persons similarly situated in relation to a statute be treated equally. (30) When faced with the question of whether a statute violates the state or federal equal protection clause(s), a court must first determine the level of scrutiny to apply to the statute. (31) Traditionally, courts have had three options from which to choose: strict scrutiny, intermediate scrutiny, or rational basis scrutiny. (32) However, other, non-traditional levels of scrutiny have arisen in case law that do not fit within the parameters of the traditional three-tier analysis. (33) These levels have often been equivocally labeled "Heightened Scrutiny." (34)

      1. Strict Scrutiny

         When a plaintiff files an equal protection challenge to a state law that impinges upon a fundamental right or disadvantages a suspect classification, the courts apply strict scrutiny. (35) Strict scrutiny applies where the law discriminates based on race, national origin, or ethnicity. (36) Strict scrutiny also applies when the law limits a fundamental right, such as freedom of speech. (37) The statute survives only when the state establishes a "compelling interest," and where the law or ordinance is narrowly tailored such that there are no less restrictive means available to achieve the desired effect. (38) This standard of review imposes a heavy burden on the state, and laws reviewed under strict scrutiny usually fail this rigorous standard. (39)

      2. Intermediate Scrutiny

         Intermediate scrutiny usually involves "mid-range scrutiny" and applies to claims of discrimination based on gender or status as a non-marital child, among others. (40) While intermediate scrutiny grants more deference to legislative acts than strict scrutiny--thus providing an easier standard for the government to overcome--it nonetheless provides greater protection than rational basis scrutiny. (41) In intermediate scrutiny cases, the government bears the burden of showing that the classification promotes an "important governmental" interest. (42) Courts have established a two-prong test that challengers must overcome in order to justify the classification: "first, the classification must serve an important government objective, and second, the classification must be substantially related to the achievement of that objective." (43) Courts have consistently struck down laws that restrict protected classifications if the restriction is "archaic and overbroad," (44)...