A Tucson man says Arizona’s ban on same-sex marriage continues to hurt him years after the ban was lifted.
Michael Ely, 66, is challenging a Social Security Administration policy that denies spousal survivor’s benefits if the marriage lasted less than nine months. Ely argues that he and his deceased husband, James Taylor, never had a chance to reach that milestone.
Ely and Taylor spent more than 40 years as a couple before same-sex marriage was legalized in Arizona in late 2014.
They quickly obtained a marriage license and said their vows at the Pima County courthouse. Six months later, Taylor died from cancer. Since then, Ely has tried unsuccessfully to get survivor’s benefits from the Social Security Administration.
On Friday, Ely’s legal team told Magistrate Judge Bruce G. Macdonald that denying survivor’s benefits to Ely would be a continuation of the discrimination Ely suffered while Arizona banned same-sex marriage.
“It was impossible for them to meet the test that the federal government is requiring for access to survivor’s benefits,” Peter Renn, a lawyer with Lambda Legal, said after the hearing.
The monthly checks from the Social Security Administration are “incredibly important” and can determine whether “you have a roof over your head, whether you have food on the table, whether you have money to buy medication,” Renn said.
Stephen Pezzi, a lawyer with the Department of Justice, argued the Social Security Administration did not have any intent to discriminate when denying survivor’s benefits to Ely.
Congress could pass a law to carve out an exception for Ely and others in his situation, Pezzi told Macdonald. Until then, the Social Security Administration will maintain the “bright line” rule requiring nine months of marriage.
Macdonald said he would take the matter under advisement.
Renn said he hopes the court issues a decision quickly due to the “gravity” of the problems caused by lack of access to benefits.
Taylor paid into Social Security for roughly 40 years while he worked as an aircraft mechanic, Ely said after the hearing. One of the companies Taylor worked for denied Ely’s request for benefits because they had not been married for a year. The benefits from a second company Taylor worked for will expire in a few years.
Several weeks before Taylor died, Ely and Taylor, who was in a wheelchair at the time, went to a Social Security office to see if there was any way around the nine-month rule, Ely said.
“They said ‘No, you need to be married nine months.’ He said, ‘I don’t think I can live that long,’” Ely said.
One issue brought up at the hearing was California legalizing same-sex marriage six years before Arizona.
“We considered that, but just the time and expense to go to another state to get married, only to come back and be told that we weren’t married in our home state was just too much for us,” Ely said after the hearing.
“I still miss him,” Ely said. “We had a good life together. I promised him before he died that I would be doing this exact thing.”
Renn said they are asking the court to make the lawsuit a class action. If the court agrees, then the outcome of the lawsuit would cover ongoing lawsuits in other states, as well as a Phoenix man who was homeless twice and depends on a local food bank because he can not access survivor’s benefits.
“There’s a lot of people in my situation, so I’m hoping this will help everybody,” Ely said.
