“The Social Security Administration is allowing the heartbreak of discriminatory marriage bans to persist by holding same-sex couples to a standard that many could not meet.”

(Tucson, AZ, November 20, 2018) – Lambda Legal today filed a lawsuit against the U.S. Social Security Administration (SSA) on behalf of a 65-year-old gay man seeking spousal survivor’s benefits based on his 43-year relationship with his husband, who died seven months after Arizona began allowing same-sex couples to marry. The lawsuit filed on behalf of Michael Ely in the U.S. District Court for the District of Arizona argues that SSA’s imposition of a nine-month marriage requirement for social security survivor’s benefits is unconstitutional where same-sex couples were not able to be married for nine months because of discriminatory marriage laws.

“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 Lambda Legal Counsel Peter Renn. “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, but they were only able to be married for six months before Michael’s husband died of cancer. Now, the Social Security Administration is allowing the heartbreak of discriminatory marriage bans to persist by holding same-sex couples to a standard that many could not meet, insisting that they have been married for nine months even where it was legally impossible for them to do so.”

“My husband was the love of my life,” Ely said. “We met in 1971, and we were inseparable for the next 43 years. Like other committed couples, we built a life together and cared for each other in sickness and in health. When Arizona’s ban on marriage by same-sex couples was struck down in 2014, we got married as soon as we could, quickly gathering our loved ones together in less than three weeks. But we were only able to be married for six months before I lost him to cancer. Even though we’d been together for 43 years, I’m barred from receiving the same benefits as other widowers, even though my husband had worked hard for 40-plus years and paid into the social security system with every paycheck.”

Michael Ely and James “Spider” Taylor were in a committed relationship from 1971, when Ely was 18 and Taylor 20 years old. They moved from Southern California to Tucson, Arizona in 1994. Taylor was the primary wage earner, while Ely managed their household. Although they were barred from marrying for most of their relationship, they had a commitment ceremony in 2007. When Taylor got sick, Ely was his caregiver. Social Security generally requires that couples be married for at least nine months before a spouse dies in order for the surviving spouse to qualify for survivor’s benefits, but for many same-sex couples, that was impossible.

“Same-sex couples who weren’t able to marry for most of their relationship faced discrimination throughout their lives, and now surviving spouses like Michael face it all over again, after their loved one has died. It’s like pouring salt in a wound. Denied equality in life, they are denied equality once again in death,” Renn added. “These benefits are as essential to the financial security of surviving same-sex spouses in their retirement years as they are to heterosexual surviving spouses. But the government is holding their benefits hostage and imposing impossible-to-satisfy terms for their release.”

Read about the case, Ely v. Berryhill. This is the second lawsuit Lambda Legal has filed in the past year challenging Social Security’s requirement that couples be married for at least nine months to qualify for survivor’s benefits. In September, Lambda Legal filed Thornton v. Berryhill in the U.S. District Court for the Western District of Washington.

Lambda Legal’s attorneys working on the case are: Peter Renn, Tara Borelli, and Karen Loewy. They are joined by Tucson attorneys Brian Clymer and Autumn Menard.