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Missouri supremes set the state up for slap down

Timothy Kincaid

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.

Comments

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occono
October 31st, 2013 | LINK

Hmm, I thought the Yarmulkes quote was from Ginsburg. Googling shows others thought so too, but the opinion was written by Scalia. Geez.

Timothy Kincaid
October 31st, 2013 | LINK

occono, I thought so too until recently.

As for Scalia, it does make you wonder if maybe he meant that you should just go ahead and tax Jews. I’m kidding… but only a little bit.

TampaZeke
October 31st, 2013 | LINK

But in Scalia’s mind it’s OK to discriminate against gays because you don’t have to wear a yarmulke to be gay.

Yeah, I know, it doesn’t make sense. But then against, most of the time, neither does Scalia. The brilliant yarmulke statement was just a broken clock example.

David in the O.C.
October 31st, 2013 | LINK

I find it beyond offensive that the Missouri Supreme Court doesn’t even acknowledge that their own state has a ban on same-sex marriage. So the state is the one that’s responsible for Kelly and his partner not being able to comply with the law. THEY allowed the marriage discrimination to exist. Yet won’t admit that it’s inherently wrong, even though the proof is right in front of them. Pathetic.

Brad
October 31st, 2013 | LINK

I love that Scalia’s dissents and rulings against GLBT equality have, in fact, become some of the strongest legal arguments FOR GLBT equality. I wonder if he appreciates the irony as well?

Ray
October 31st, 2013 | LINK

Excellent coverage, Timothy.

May I make an appeal on a BTB web site problem here?

I would share FAR more articles from BTB if, when I did so, the headline and the intro paragraph matched on Facebook. Each time I share a story, it get’s the right headline and associated image but it *always* has an opening paragraph about Kirk Murphy.

I have to compose a correction so my friends will understand there’s a glitch on BTB that causes the problem. I’ve encountered *no* other website that does this when I share a story. I don’t know if BTB cares about having their stories shared enough to try and correct was is a technical problem, but I’d appreciate it.

Richard Rush
October 31st, 2013 | LINK

So, if I understand correctly, the state made it impossible for the couple to comply with laws regulating survivor benefits, and then the state denied the benefits because the couple didn’t comply with those laws. Catch-22.

Gene in L.A.
October 31st, 2013 | LINK

I second Ray’s request. I haven’t shared BTB stories on FaceBook for a long time. It’s disheartening to learn the problem still exists.

Rick
October 31st, 2013 | LINK

Gene and Ray: the direct link to each article is underneath the article. Clicking on the link called ‘link’ directs you to the URL for that article, rather than directing you to the home page.

plaintom
October 31st, 2013 | LINK

I am glad the circular logic they are forced to utilize to rationalize position often results in a circular firing squad.

casey
October 31st, 2013 | LINK

Only 9 states still recognize common law marriages? Being from a state that has it (CA) – I would have thought more did. Missouri since 1921.
I wonder if between 1921-2013 someone somewhere in MO set a different precedence. Good luck!

Marcus
October 31st, 2013 | LINK

“We’re not discriminating against them for being a same-sex couple! We’re discriminating against them for being discriminated against by us for being a same-sex couple!”

Seriously?

Désirée
November 1st, 2013 | LINK

clicking on “link” and then share on facebook, still provides a paragraph on Kirk Murphy. BTBs facebook sharing is fatally broken, preventing sharing of BTB articles on FB

Jim Hlavac
November 1st, 2013 | LINK

I agree that the BTB share and link issue is a problem — I would like to point out specific articles, and instead I get the same generic stuff — and I have to say “BTB won’t let me link to specific articles …”

As for the topic of the article, typical — nothing applies only to us, except we’re never included.

Sandhorse
November 1st, 2013 | LINK

Until the protections of the law apply to us and not just the proscriptions of the law; it must be stated. Protect yourself. Whenever possible, get life insurance, PA’s, etc. Travesties like the above are painful reminders that, just because gays and lesbians pay into the state coffers, that does not mean the state will guard our interests. Until then, we can only depend on ourselves.

Rob
November 1st, 2013 | LINK

I don’t know why others seem to be having a problem with sharing on Facebook. I clicked the link to be taken into the story itself, then I hit the share,on Facebook link, below the main body of the story, and lo and behold this story, complete,with family photograph, has appeared on my Facebook feed. Not the old problem that others are saying still exists. Could it be the browser or operating system you are on?

I’m on an iPad using safari.

Rob
November 1st, 2013 | LINK

I have now posted three stories of interest to my Facebook page by utilizing the “Share On Facebook” hyperlink and I did so once from inside the story after clicking on the stories “Link” hyperlink then clicking the share Facebook link, then once from inside the story after just clicking the comments link, and now once directly from the front page using the share hyperlink. All three times it posted the story I wanted to share and not the old way of posting a main page link with a preview of the Fealty story. The new link seems to be working quite well. I will now be sharing BTB with my friends. Whom, you will be relieved to know, are not anywhere as aggressive as I might be….

Sandhorse
November 1st, 2013 | LINK

From the original article:

“In a statement PROMO of St. Louis, a statewide LGBT advocacy, emphasized disappointment in the ruling.

‘The Missouri Supreme Court decided on narrow grounds to deny survivor benefits because Kelly Glossip and Cpl. Dennis Englehard were not married in a jurisdiction where marriage is legally recognized,’”

Did I read that last sentence right? If I did, it should have been phrased a little differently.

Timothy Kincaid
November 1st, 2013 | LINK

We simply don’t know how to fix the Facebook problem. We’ve tried. We’ll keep trying.

Rob
November 1st, 2013 | LINK

Sandhorse,

Possibly if they had gone to NY or someplace where they could have married, maybe that played into it. Because they actually had no marriage anywhere. Most of the cases of States giving some rights to gay couples stems from the fact that they did take advantage of marriage somewhere. I’m wondering if they had married in NY if maybe he would have gotten the benefits. That’s what I was thinking when I saw that.

occono
November 1st, 2013 | LINK

You can disable the text/image previews on Facebook, I think.

I don’t think their not having a marriage should matter in an appeal. It would have been an unfair burden on them to get one. Can a case against the marriage ban as unconstitutional also serve to get him benefits?

Hyhybt
November 1st, 2013 | LINK

On the Facebook thing, for those apparently claiming the problem doesn’t exist for them: the problem is NOT that it is impossible, or even difficult, to link to a specific article. The problem is that doing so, even by just pasting the article’s direct link into FB, yields an incorrect *description*. You can take the extra step of removing or editing it, but the default action is that a description appears which is appropriate only to one story from a few years ago.

On the article: the ruling, unless I’ve missed something, makes perfect sense. Unless the couple was legally married *somewhere,* there is nothing for the court to hang marital benefits for them on. Had they married in, say, Canada, the survivor could sue to get that recognized, but as things stand (and unless they did do that and it just hasn’t been reported) there’s nothing to recognize… at least without logically forcing marriage onto everyone who lives together.

A challenge to the prohibition on *getting* married would of course have to be made by someone trying to marry and being refused; it doesn’t make sense after marriage is no longer possible because of death.

Rob
November 1st, 2013 | LINK

Hyhybt-

As I’m the only one to lay claim to it working for me, I am fully aware of what the stated problem is. In fact, I asked others what platform they were on and stated how I was accessing the page (iPad Safari browser). And the Link to Facebook hyperlink works correctly on that platform. Posting the correct story with the correct image. It did not post the same, for me on this platform and browser, the same way in which others are having a problem. The first step in solving technical issues is by having as much information as possible. When one knows what ways it does work, it’s sometimes easier to figure out why it doesn’t work for others. I’m unsure why you are so huffy because I posted that it works correctly for how I’m accessing it but I’m not “apparently claiming” anything, nor am I confused as to what the issue is that others are experiencing. I have experienced the same when on my Desktop. No reason for you to assert that I’m lying.

Hyhybt
November 2nd, 2013 | LINK

Nor is there any reason to assert that I said you were lying, since I clearly did no such thing.

Ray
November 2nd, 2013 | LINK

Timothy, If you do find a fix, please consider posting a special topic to alert readers. I’ll watch for it.

Thanks,

Ray

Nathaniel
November 5th, 2013 | LINK

Just to emphasize a subtle statement from Hyhybt, it is possible to change the description; I often copy and paste the first paragraph. To do this, double click on the description after you hit the ‘share’ link; this will convert the text to something that can be edited. It is inconvenient, but it is better than sharing something that looks wrong. And BTB articles are so often more worth sharing than many others on the same subject, if only because of the tone of the article, and the thoughtful, well-stated arguments. However, I do hope the problem can be fixed altogether.

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