Missouri supremes set the state up for slap down
October 31st, 2013
Justice Scalia once famously said that “a tax on yarmulkes is a tax on Jews”, the idea being that one cannot hide behind the technicality of a law ‘applying to everyone’ when the actuality is that the law is designed to impact only one demographic.
And though Scalia refuses to see it, he provided the clearest legal parable as to why it is that laws designed to impact only gay citizens – though couched as ‘applying to everyone’ – violate the US Constitution.
Although several conservative politicians have tried to claim that their state’s sodomy laws are still valid using the argument that they applied to both gay and straight people, these have never gotten any legal traction. When Ken Cuccinelli, the Virginia Attorney General (and GOP gubernatorial candidate), tried to argue for reinstatement of that state’s sodomy laws by bringing a case involving oral sex with an opposite-sex minor, the US Supreme Court didn’t even grant certiorari.
Nevertheless, those who oppose equality for gay people often tie themselves up in logic pretzels, seeking a way to simultaneously disadvantage gay citizens while still convincing themselves that they are applying rules equally and fairly. And one of their favorite tactics is to make one unequal law – fully justified in this one instance by tradition and religious freedom and social need and, especially, ‘think of the children’ – and to then use that inequality as justification for the next. It’s what I call gay yarmulke logic.
The current iteration of the gay yarmulke is marriage (having replaced “homosexual acts”). Those who oppose equality aren’t anti-gay, you see, just anti-gay marriage. And, of course, the next inequality is justified by marriage inequality.
The latest example comes to us from the State of Missouri.
On Christmas Day 2009, Missouri State Trooper, Corporal Dennis Engelhard was hit and killed in the line of duty when a car hit an icy patch and veered out of control. He left behind his partner of 15 years, Kelly Glossip, and Kelly’s son who they were jointly raising.
The Police and Fireman’s Fund held a fundraiser for the parents, at which they ignored Engelhard’s spouse and child. The State Troopers issued an obituary stating that Engelhard was ‘single’ and the Governor asked people to pray for his family, who who “lost a beloved son and brother.”
And, naturally, claiming that Glossip was just “a boyfriend”, the state refused to provide him with the survivor benefits to which any spouse is entitled and which are intended to help the family go on after an officer is killed.
Glossip sued. And today the Missouri Supreme Court ruled that Glossip had no rights. Not because of his orientation, oh no of course not, but because of the gay yarmulke, marriage laws. Although they had exchanged rings, they weren’t a family. (OzarksFirst)
Glossip argued that the law was discriminatory because Missouri state law also forbids same-sex marriage. He also claims it is an unconstitutional special law.
The court rejected these claims.
In a 5-2 opinion, the court ruled that the law Glossip was challenging discriminated on the basis of marriage, not sexual orientation.
“Glossip was denied ssurvivor benefits because he and the patrolman were not married, not because of his sexual orientation,” the ruling document stated. “If Glossip and the patrolman had been of different sexes, Glossip would have still been denied benefits no matter how long or close their relationship had been. The result cannot be any different here simply because Glossip and the patrolman were of the same sex. The statute discriminates solely on the basis of marital status, not sexual orientation.”
They weren’t discriminating against gay people, you see, just people of the same sex being spouses. They also oppose heterosexual people of the same sex being spouses. Just like they would tax Lutherans for wearing yarmulkes.
But while these cases frustrate me, they are our key to equality. These examples of discrimination are so blatant, so intuitively unfair, that they win not only our legal arguments but the hearts of the public.
What the State of Missouri did to not just Kelly Glossip but to Dennis Engelhard, who gave his life for the state, is so cruel that it shames decent people. And the gay yarmulke argument is so obscene that it is inconceivable that it could hold up to an inspection by the US Supreme Court.
It is through cases like this one that marriage equality will finally be achieved.