Missouri Marital Benefits Decision (and the Conceptual Question of Subset/Superset Discrimination)

Today, the Missouri Supreme Court decided Glossip v. Missouri D.O.T., a case brought by a man seeking survivor’s benefits from the death of his same-sex partner, a Missouri patrolman. Missouri does not let same-sex couples marry, nor recognize same-sex marriages from elsewhere. But Missouri law provides survivor’s benefits only to married couples. So Glossip argued that the law discriminated unconstitutionally on the basis of sexual orientation. (He did not challenge Missouri’s ban on same-sex marriage.) The Missouri Supreme Court upheld the law, 5-2.

I know some folks are only interested in these opinions as a matter of generally keeping score in the ongoing fight about same-sex marriage. And that is obviously its immediate practical relevance.

But the case also seems to raise an important and unsolved conceptual issue in antidiscrimination law. When a law discriminates against a group of people that include all of the members of a class, or a strict subset of the members of a class, is it discrimination against that class?

For example when a law discriminates against pregnant women, is that discrimination against women? (The Court has said no, but many people disagree and Congress has defined pregnancy as a form of statutory sex-discrimination.)

At a time when only men could become veterans, did veterans’ preferences discriminate against women? (The Court did not answer the question in Massachusetts v. Feeney, though it implied that the answer was probably “no.”)

When a law discriminates in favor of those whose ancestors could vote before 1866 (a classic “grandfather” clause), does that law discriminate on the basis of race? (The Court has said yes.)

A law discriminating in favor of married couples, when all same-sex couples are unmarried and many opposite-sex couples are also unmarried, has a similar form. All couples who benefit from the law are opposite-sex, but not all couples who are burdened by it are same-sex — is that a form of sexual-orientation discrimination?

That question is at the center of Glossip. Indeed, the chief difference between the dissent and the majority seems to have been how to conceptualize the form of discrimination at issue. But I’m not sure what the general conceptual answer is to this kind of question, if there even is one.

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