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VICTORY! Same-Sex Spouses Nationwide Gain Equal Access to Social Security Survivor's Benefits

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May 27, 2020
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A federal district court today ruled that the U.S. Social Security Administration's (SSA's) refusal to consider the claims for survivor's benefits by same-sex spouses who were unable to be married for nine months because of state marriage bans is unconstitutional.

While the number of states that allowed same-sex couples to marry gradually increased from 2004 until 2015, when the U.S. Supreme Court struck down all remaining state bans, that freedom came too late for many couples. Even where same-sex couples married as soon as they could once their state marriage bans were lifted, many were unable to be married for nine months before one spouse died, and SSA denied them benefits for not being married for long enough.

"This is a tremendous victory for many surviving same-sex spouses nationwide who have been locked out of critical benefits because they were unlawfully barred from marriage for most of their relationships," said Lambda Legal Counsel Peter Renn.

"Many same-sex couples were in loving, long-term, and committed relationships for decades – and they shouldn't be treated as strangers in death simply because they were unable to marry for most of that time. No one should be penalized for being the victim of discrimination. The denial of access to these critical benefits can have dire consequences, with some of our class members experiencing homelessness."

"It is gratifying to have the court today recognize the 43 years of love and commitment that my late husband and I shared, rather than looking only at the date on a marriage certificate that we were denied for most of our lives," said plaintiff Michael Ely.

"My late husband, who went by the nickname 'Spider,' was the love of my life, and we got married as soon as the law permitted. My husband paid into social security with every paycheck, and I know he can rest easier now knowing that I, at last, will start receiving the same benefits as other widowers."

Today's ruling came in Ely v. Saul (formerly Ely v. Berryhill), the lawsuit Lambda Legal filed in November, 2018, against SSA on behalf of Michael Ely, who married his partner of 43 years, James "Spider" Taylor, immediately after Arizona's ban on marriage for same-sex couples was struck down in 2014. Taylor died of cancer six months later.

SSA denied Ely survivor's benefits for not being married for nine months, even though that was legally impossible for him in Arizona. The court today also certified the case as a nationwide class action, providing a pathway to relief for same-sex spouses across the country who were similarly barred from meeting the 9-month requirement by discriminatory marriage bans.

"These couples would have married decades ago had they been allowed, as evidenced by how quickly they did marry, in many cases at great effort, once the discriminatory bans were lifted," Lambda Legal Senior Counsel and Seniors Strategist Karen Loewy added.

"Had they been free to marry when they wanted, like different-sex couples, there would have been no question about their right to access survivor's benefits. The court today recognized that, and affirmed that, in striking down the marriage bans, the Supreme Court made clear that same-sex couples should have access to all the protections of marriage and that the scourge of the decades-long discrimination should not be allowed to endure."

One class member, Josh Driggs, from Phoenix, Arizona, already experienced homelessness on two separate occasions after Social Security denied him survivor's benefits based on his more than 40-year relationship with his husband, Glenn Driggs, 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'm relieved to know that no one else in our community will have to experience that indignity simply because of who they loved."

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.