LEGAL
Biden Drops Trump’s Appeals of Social Security Benefi ts
LGBTQ couples entitled to statutory survivors benefi ts
BY ARTHUR S. LEONARD
Lambda Legal announced
on November 1 that the
Justice Department has
dismissed two appeals
pending at the San Franciscobased
Ninth Circuit Court of Appeals,
opening the way for enforcement
of orders by federal courts
in Washington State and Arizona
in favor of Lambda’s claim that
surviving same-sex partners who
would have married their spouses
prior to marriage equality should
be entitled to statutory survivors’
benefi ts under the Social Security
Act (SSA).
The SSA provides that if a married
Social Security benefi ciary
dies, their surviving spouse is entitled
to a small monetary death
benefi t and to a continuation of
the monthly benefi ts that their
deceased spouse had been receiving.
As marriage equality began to
achieve success on the state level
beginning with Massachusetts,
where same-sex couples were able
to marry beginning in May 2004,
entitlement to spousal survival
benefi ts should have been extended
to them, but the federal Defense
of Marriage Act (DOMA) stood in
the way, preventing the Social Security
Administration from recognizing
such marriages.
By the time DOMA was declared
unconstitutional in 2013, marriage
equality had been won in several
more states, and the Social Security
Administration began awarding
benefi ts to surviving same-sex
spouses of SSA benefi ciaries who
had been legally married for at least
nine months before their spouses
died. The nine-month durational
requirement is statutory, enacted
to prevent fraudulent attempts by
people to marry dying people just
to claim spousal benefi ts.
In 2015, in the Obergefell case,
the Supreme Court declared that
same-sex couples enjoy the same
right to marry as different sex couples
under the 14th Amendment
of the Constitution, which was
adopted in 1868. The question remained
whether this newly-discovered
Michael Ely (with his late husband, James “Spider” Taylor) was initially denied when he applied for spousal benefi ts after his husband passed away.
right in an old constitutional
provision could be extended retroactively
to confer spousal status
on same-sex couples who would
have married but were barred by
state laws from doing so, an issue
that has played out particularly in
states that recognize common-law
marriages where long-time samesex
partners assert claims based
on pre-marriage equality relationships.
The two Lambda lawsuits
took on this issue in the context of
SSA survivor benefi ts.
One class of survivors whose
claims for spousal benefi ts were
denied was represented in a case
Lambda fi led in the District Court
in Arizona in 2018 on behalf of Michael
Ely. Ely married his partner
of 43 years, James Taylor, in 2014,
after the state of Arizona complied
with a marriage equality court ruling.
Ely and Taylor had begun living
together in California in 1971
and relocated to Arizona in the
early 1990s. Taylor was the “breadwinner”
and Ely the “homemaker”
in their relationship. They frequently
spoke of marrying during
their long relationship, and even
contemplated going to California to
get married when it became possible
there earlier, but decided not
to do so until their marriage would
be recognized in Arizona. It was
Taylor whose payroll taxes qualifi
ed him as a social security benefi
ciary. He was diagnosed with
cancer in 2013.
When the men married on November
14, 2014, Taylor had only
six months to live. After Taylor
died, Ely fi led an application for
spousal benefi ts, which the Social
Security Administration rejected,
even though the federal government
was obliged to recognize the
marriage as a result of the Supreme
Court’s June 2013 Windsor
decision. The benefi ts were denied
because the men had been married
less than nine months when
Taylor died. Lambda’s suit claimed
that because the inability for these
men to marry earlier was due to an
unconstitutional Arizona law, Ely
should be able to qualify based on
evidence of their relationship showing
that they would have married
much earlier had it been legal.
US Magistrate Judge Bruce G.
Macdonald, who was assigned by
the district court to decide pretrial
motions, ruled on May 26, 2020,
that Lambda was correct. He certifi
ed the case as a class action of
people similarly situated to Ely and
Taylor, who had married once it
became legal, but whose marriage
was ended by the death of the social
security benefi ciary less than
LAMBDA LEGAL
nine months after their marriage,
but excluding people who would
be part of the class action in the
Thornton case, described below.
One of the class members is James
Obergefell, the lead plaintiff in the
Supreme Court’s 2015 marriage
equality case, who married James
Arthur just shortly before Arthur’s
death in 2013 and then sued to
have their home state of Ohio recognize
the marriage, fi ling a marriage
equality case that ended up
at the Supreme Court.
After certifying the class, Judge
Macdonald issued an injunction
prohibiting the Social Security Administration
from “denying class
members benefi ts without consideration
of whether survivors of
same-sex couples who were prohibited
by unconstitutional laws
barring same-sex marriage from
being married for at least nine
months would otherwise qualify
for survivor’s benefi ts,” and sent
the case back to Social Security for
calculation and award of benefi ts
to Ely. Under Macdonald’s ruling,
members of the class can apply (or
re-apply as the case may be) and
seek benefi ts accordingly.
The second class of survivors
— in a separate lawsuit fi led by
➤ SOCIAL SECURITY, continued on p.7
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