“Social Security’s nine-month rule serves only to continue the harms that invalid marriage bans created. It’s past time for a change.”

(Las Cruces, NM, December 13, 2018) – Lambda Legal today filed a motion on behalf of a 63-year-old gay man arguing that the Social Security Administration’s denial of spousal survivor’s benefits to him, on the grounds that he was not married for long enough despite marrying on the very first day when he was allowed to do so, is unconstitutional. The lawsuit filed on behalf of Anthony Gonzales, who was in a 15-year committed relationship with his husband, in the U.S. District Court for the District of New Mexico 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.

“Over the past three months, we have filed lawsuits against the Social Security Administration in three different states – Washington, Arizona and, today, New Mexico – all underscoring the ongoing harm that a number of same-sex couples continue to experience from marriage bans, despite those laws having been struck down,” said Lambda Legal Counsel Peter Renn. “Anthony and his husband, Mark Johnson, got married literally on the very first day they could in Albuquerque, New Mexico, which was August 27, 2013. Tragically, cancer claimed Mark’s life six months later. Because they were not married for nine months, as Social Security requires, Anthony was denied access to the survivor’s benefits to which Mark contributed. Social Security’s nine-month rule serves only to continue the harms that invalid marriage bans created. It’s past time for a change.””

“I met Mark in 1998, and five months later, we moved in together,” Anthony Gonzales said. “We established a joint checking account, named each other as our beneficiaries, and cared for each other when sick—basically, all the things that committed couples do. And then New Mexico’s marriage ban was struck down. We were together for 15 years, and we got married as soon as humanly possible, but I’m still barred from receiving the same benefits as other widowers, even though my husband worked hard and paid into the social security system with every paycheck. The government tells me we weren’t married for long enough, but we literally married the first day we could. How is that fair?”

Anthony Gonzales and Mark Johnson were in a committed relationship from 1998 until Johnson died in 2014. They lived in Albuquerque, New Mexico, where Gonzales worked for a local non-profit and Johnson was an elementary school teacher. Then, in August 2013, when a New Mexico state court struck down the state’s marriage ban, Gonzales and Johnson immediately got married. They were among the dozens of same-sex couples who participated in a mass wedding ceremony on Albuquerque’s Civic Plaza the day after the court ruling and the first day marriage licenses were issued to same-sex couples.

“Same-sex couples who weren’t able to marry for most of their relationship faced discrimination throughout their lives, and now surviving spouses like Anthony face it all over again, after their loved one has died,” Renn added. “Even the Social Security Administration’s own judge urged Anthony to file in federal court so it could rectify the obvious inequality that same-sex surviving spouses like Anthony now face. 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, Gonzales v. Berryhill, here: https://www.lambdalegal.org/in-court/cases/gonzales-v-berryhill. This is the third 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. Read about that case here: https://www.lambdalegal.org/in-court/cases/thornton-v-berryhill. And in November, Lambda Legal filed Ely v. Berryhill in the U.S. District Court for the District of Arizona. Read about that case 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 Albuquerque attorney Maria E. Touchet and Santa Fe attorney Helen Laura Lopez.