FAMILIES
Social Security Survivorship Ruled to Predate 2015
Lesbian who lost her partner in 2006 prevails in federal district court, in Lambda win
BY ARTHUR S. LEONARD
Lambda Legal’s challenge
to the Social Security
Administration’s categorical
denial of survivor
benefi ts to surviving same-sex
partners prevented from marrying
by unconstitutional state laws has
succeeded in a US district court.
On September 11, Senior US
District Judge James L. Robart
of the Western District of Washington
bench in Seattle ruled that
the SSA policy violates the equal
protection and due process rights
of the plaintiff as well as members
of the national class that the court
certifi ed.
Lambda sued on behalf of Helen
J. Thornton, whose partner of
27 years, Margery Brown, died in
2006, when the State of Washington
still prohibited same-sex marriages
by statute. Not too long afterwards,
the state progressed to
recognizing civil unions and, eventually,
marriage equality, a few
years before the Supreme Court’s
2015 ruling in Obergefell v. Hodges
held that all state bans on such
marriages were unconstitutional.
Lambda Legal prevails for client
who lost her partner in 2006, when
Washington State still denied marriage
equality
In 2015, Thornton applied for
the Social Security survivor benefi
ts to which she would have been
entitled had she and Brown been
married when her late partner
died. She contended that the women
had been married in every practical
respect and would have been
married had the state law allowed
it. As of 2006, there were only a
handful of states where same-sex
couples could marry, and neither
Washington State nor the federal
government would have recognized
such a marriage at that time.
Since the laws prohibiting samesex
marriages are now known to
have been unconstitutional, she
argued, it was similarly unconstitutional
to deny her the benefi ts.
Under the Social Security Act,
surviving spouses of people whose
work record entitled them to retirement
Helen J. Thornton (right), with her late partner Margery Brown.
benefi ts are eligible to continue
receiving the monthly benefi ts
after their spouse dies, the main
exception being that those married
less than nine months before one
spouse’s death are not eligible.
In addition to representing
Thornton, Lambda sought class
certifi cation, so that the determination
of the legal issues would apply
to anybody who is in the same
situation as Thornton. Class certifi
cation involves common legal
and factual issues for all the class
members, so that resolving the issues
in a single proceeding is most
effi cient and economical for the judicial
system and claimants.
Magistrate Judge J. Richard
Creatura, who prepared a report
and recommendations for Judge
Robart, responded affi rmatively
to Lambda’s suit, recommending
certifi cation of a class that closely
tracked the facts of Thornton’s
case. The SSA opposed certifying
the class, pointing out that each
individual application presents
different questions of proof about
whether the applicant and their
deceased partner would have been
married at the time of death had
their state’s law permitted it. Neither
Creatura nor Judge Robart
saw that as a problem, pointing
out that the issue before the court
is whether the categorical bar established
by the SSA’s interpretation
LAMBDA LEGAL
of the Social Security Act is
constitutional. Once that question
is out of the way, it is just a matter
of fact-fi nding in individual cases.
On the central legal question, the
government argued that because
the statute does not discriminate
on its face regarding sexual orientation,
the categorical ban should
be subjected to a rational basis
test, a deferential standard of judicial
review under which the SSA’s
interest in effi ciency and avoiding
fraudulent claims was suffi ciently
rational to survive scrutiny.
The judges rejected that argument.
Under Obergefell v. Hodges,
the right of same-sex couples to
marry is deemed “fundamental”
in terms of both due process and
equal protection, and the state
laws that prevented these couples
from marrying are clearly unconstitutional
in retrospect. The Social
Security Act, in turn, by relying
on state law to determine the
marital status of decedents and
their survivors, is inextricably intertwined
with the unconstitutional
state laws. In light of that — and
of Ninth Circuit Court of Appeals
precedents holding that sexual orientation
discrimination is subject
to “heightened scrutiny” — both
judges applied heightened scrutiny
here, which means the burden was
on the government to show that its
rule substantially advances an important
state interest.
Robart observed that the SSA
never argued that its approach
would survive heightened scrutiny,
a concession that came back
to haunt the government. But the
judges went even further, fi nding
that the policy failed even the less
demanding rational basis test.
In light of these rulings, the only
argument remaining was whether
the defi nition of the class of potential
plaintiffs was too narrow or too
broad, with the parties taking opposing
positions on that. The court
rejected the government’s argument
that it was too broad or that
the court’s order should be confi
ned to Thornton’s claim.
At the same time, the court rejected
Lambda’s contention that relief
should not be limited to people
who applied to the Social Security
Administration and were rejected
for benefi ts. Robart pointed out
that the statute only provides for
judicial review of benefi t denials,
so the court has no jurisdiction
to order relief for people who have
not yet applied and been turned
down.
The class certifi cation also specifi
cally excludes coverage of the
claims of people who are part of
the class in a separate lawsuit that
challenges the denial of benefi ts
to surviving spouses who were
married less than nine months.
Survivors of same-sex spouses
they married as soon as marriage
equality became available in their
state but less than nine months
before their spouse’s death are in
that lawsuit’s class.
Robart directed the parties to
submit their views on how the
court should structure relief in
this case. After that process is
concluded, the government could
seek review from the Ninth Circuit
Court of Appeals.
Robart was named to the court
by President George W. Bush.
Lambda Legal attorneys on the
case include Tara Borelli from
Lambda’s Atlanta offi ce, Karen
Loewy from the New York offi ce,
and Peter Renn from the Los Angeles
offi ce.
September 24 - October 7,4 2020 | GayCityNews.com
/GayCityNews.com
