A lawsuit filed in Tucson asserts that same-sex couples shouldn’t be held to Social Security’s nine-month marriage requirement for receiving spousal survivor benefits if they were legally prevented from marrying during that period.
Gay-rights group Lambda Legal filed the lawsuit Tuesday against the Social Security Administration on behalf of 65-year-old Michael Ely, a gay Tucson resident who is seeking spousal survivor’s benefits based on his 43-year relationship with the man he eventually married.
James “Spider” Taylor died six months after the couple married — and three months shy of satisfying the Social Security requirement. The couple married three weeks after Arizona’s ban on same-sex marriage was struck down by a federal court in October 2014.
Ely’s lawsuit in the U.S. District Court for Arizona argues that a nine-month marriage requirement for survivor’s benefits is unconstitutional in states where same-sex couples were not able to marry because of discriminatory laws.
A Social Security Administration spokeswoman said the agency doesn’t comment on pending litigation.
Unable to legally marry for decades
“The federal government is requiring surviving same-sex spouses like Michael to pass an impossible test to access benefits earned through a lifetime of work,” said Peter Renn, Los Angeles-based counsel for Lambda Legal.
Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and others.
“Michael and his husband got married as soon as they could, less than three weeks after Arizona ended its exclusion of same-sex couples from marriage,” said Renn in a statement. “But they were only able to be married for six months before Michael’s husband died of cancer.”
The lawsuit names Nancy Berryhill, acting commissioner of the Social Security Administration, as defendant. It alleges the agency is allowing the “heartbreak of discriminatory marriage bans to persist by holding same-sex couples to a standard that many could not meet,” in places where it wasn’t legal to be married.
In an interview, Renn said Lambda Legal has received numerous calls on this issue, but he couldn’t estimate how many gay couples nationally might be or might have been affected by the Social Security rule.
Couple’s relationship started in 1971
Ely and Taylor were in a committed relationship from 1971, when Ely was 18 and Taylor 20 years old, according to the lawsuit. They moved from Southern California to Tucson in 1994.
Taylor, an engineer, was the primary wage earner, while Ely managed the household. Though not allowed to marry at the time, the couple held a commitment ceremony in 2007. When Taylor got sick, Ely was his caregiver. Taylor died six months after the couple’s marriage ceremony.
“Even though we’d been together for 43 years, I’m barred from receiving the same benefits as other widowers,” Ely said in a statement. “My husband had worked hard for 40-plus years and paid into the Social Security system with every paycheck.”
Arizona’s ban on same-sex marriage ended in October 2014 after the federal court in Arizona enjoined the state from enforcing it, Renn said.
Ely would have been eligible for survivor benefits of roughly $1,600 per month after Taylor’s death in 2015 had Ely been a heterosexual widower, Renn said.
Renn said the agency is holding surviving-spouse benefits hostage and “imposing impossible-to-satisfy terms for their release.”
Legal cases on same-sex marriage
The U.S. Supreme Court recognized in 2015 that excluding same-sex couples from marriage and the legal rights associated with marriage was unconstitutional. Two years earlier, the high court decided that the federal government may not withhold spousal benefits from same-sex couples, according to the lawsuit.
The suit argues that the Social Security Administration, therefore, can’t rely on unconstitutional state laws such as Arizona’s same-sex marriage ban to determine federal eligibility for survivor’s benefits.
