Lambda Legal today asked the U.S. District Court for the District of Arizona to provide relief to all surviving same-sex spouses denied equal access to social security survivor’s benefits, including through certification of a class action. The lawsuit was filed in November on behalf of a now 66-year-old gay man seeking spousal survivor’s benefits from the U.S. Social Security Administration (SSA), which imposes a nine-month marriage requirement even where same-sex couples were not able to be married for nine months because of discriminatory marriage laws.

“Our clients and many others who were in loving, long-term, and committed relationships – in some cases for more than 40 years – have been denied equal access to these critical survivor’s benefits, paid for through a lifetime of work, based on circumstances wholly beyond their control,” Lambda Legal Counsel Peter Renn said. “The government considers them legal strangers here, rather than widows and widowers, even if they married as soon as they were able to do.”

Lambda Legal filed the motion for class certification in Ely v. Berryhill, the lawsuit it filed against SSA on behalf of Michael Ely, who married his partner of 43 years, James Taylor, immediately after Arizona’s ban on marriage for same-sex couples was struck down in 2014. Taylor died of cancer six months later. When Ely contacted SSA to begin the process of applying for survivor benefits, he was told that he did not qualify.

“It was such a shock, to be told your relationship of 43 years means nothing,” Ely said. “I lost the love of my life. We got married as soon as we could. Even though we were together for 43 years, and even though my husband paid into social security with every paycheck, I’m barred from receiving the same benefits as other widowers. I know the pain I feel and can imagine the pain of others in the same situation as me.”

Among those who would face this obstacle upon reaching retirement age is James Obergefell, the named plaintiff in Obergefell v. Hodges – the historic 2015 U.S. Supreme Court ruling that struck down marriage bans for same-sex couples nationwide. Obergefell and his husband, John Arthur, were together in a committed relationship for more than 20 years, but were only able to be married for only three months, after they chartered a medically equipped plane to fly to a state that permitted them to marry, before Arthur died from ALS. Obergefell submitted a declaration in support of today’s class certification motion.

Obergefell adds: “Although marriage equality is the law of the land, people continue to suffer because of the government’s history of discrimination. John and I moved mountains to marry, a marriage we were able to enjoy for only three short months, although we were together for more than twenty years. Equality isn’t equality if the government can hold the length of your marriage against you when that same government barred you from marriage for more than two decades in the first place.”

Read about the case, Ely v. Berryhill, here: https://www.lambdalegal.org/in-court/cases/ely-v-berryhill.

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.