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The Social Security Administration Is Refusing to Provide Survivor's Benefits to This 66-Year-Old Gay Widower

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March 6, 2020
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Lambda Legal today asked a federal court to end the U.S. Social Security Administration’s (SSA) refusal to provide monthly spousal survivor’s benefits to a 66-year-old gay man whose husband and partner of 43 years died six months after Arizona began allowing same-sex couples to marry.

Lambda Legal also asked the court to end this categorical discrimination against all similarly situated same-sex surviving spouses who married as soon as state law allowed but were unable to meet Social Security’s nine-month requirement, arguing that imposition of this requirement on same-sex couples who were barred from nine months of marriage is unconstitutional.

“Same-sex couples, including those together for more than 40 years, rushed to marry as soon as the laws allowed. To hold them to a standard that discriminatory marriage bans made impossible to meet rubs salt in the wound of their loss,” said Lambda Legal Counsel Peter Renn. “Michael and his husband got a marriage license less than a week after Arizona ended its exclusion of same-sex couples from marriage, but the Social Security Administration maintains that they needed to have married even earlier, at a time when that was legally impossible under state law. That is essentially doubling down on discriminatory marriage bans that have already been declared unconstitutional and using them to inflict profound and ongoing harm today. Some have experienced homelessness without access to these essential benefits for which they and their loved ones already paid, through a lifetime of paycheck deductions.”

“My husband was the love of my life,” Ely said. “We met in 1971, and we were inseparable for the next 43 years. Like other committed couples, we built a life together and cared for each other in sickness and in health. When Arizona’s ban on marriage by same-sex couples was struck down in 2014, we got married as soon as we could. But we were only able to be married for six months before I lost him to cancer. It was so painful, to be told by Social Security that we had not been married long enough. We were together for 43 years, and my husband paid into the social security system with every paycheck for 40-plus years, but I’m barred from receiving the same benefits as other widowers.”

Michael Ely and James “Spider” Taylor were in a committed relationship from 1971, when Ely was 18 and Taylor 20 years old. Taylor was the primary wage earner and worked as a mechanic, while Ely managed their household. Although they were barred from marrying for most of their relationship, they had a commitment ceremony in 2007. When Taylor was diagnosed with cancer, Ely cared for him until his death in May 2015.

“We have long heard from surviving spouses who, like Michael, were in decades-long relationships and built lives together, but were only able to marry late in life due to discriminatory marriage bans. And now, they are confronting old age or disability without the critical protections that Social Security provides,” said Karen Loewy, Senior Counsel and Seniors Strategist, Lambda Legal. “The only true remedy for the constitutional violations created by SSA’s exclusion is to end that exclusion for all surviving same-sex spouses who were barred from meeting the requirements for benefits by unconstitutional marriage bans.”

One such surviving spouse, Josh Driggs, from Phoenix, Arizona, already experienced homelessness on two separate occasions after Social Security denied him survivor’s benefits based on his relationship with his husband, Glenn Driggs, for more than 40 years, and he fell behind in his rent without the financial protection of those benefits.

“While these monthly benefits may seem modest, they can make the life-changing difference between having enough food, medication, or a roof over one’s head,” Driggs said. “For me, the denial left me out in the cold, literally. I had to leave the home that my husband and I had shared, and I became homeless twice – once on the eve of Thanksgiving, which I spent in my van in a Wal-Mart parking lot. I don’t want anyone else in our community to have to experience that indignity simply because of who they loved.”

Earlier this year, a federal magistrate judge in the U.S. District Court for the Western District of Washington sided with same-sex partners in a related class action filed by Lambda Legal, on behalf of same-sex couples who were wholly barred from marriage under state law. The judge found that SSA was inflicting “substantial and continuing harm.”

Lambda Legal’s attorneys working on the case are: Peter Renn, Karen Loewy, and Tara Borelli. They are joined by Tucson attorneys Brian Clymer and Autumn Menard.