Metro Weekly

Second LGBTQ widower sues Social Security Administration over denial of survivor’s benefits

Michael Ely missed the 9-month eligibility requirement because of Arizona's ban same-sex marriage

Michael Ely (left) and James “Spider” Taylor – Photo courtesy of Michael Ely.

A 65-year-old gay man has become the second LGBTQ widower in two months to sue the U.S. Social Security Administration for denying him spousal survivor’s benefits, because he could not meet certain eligibility requirements due to his home state’s ban on same-sex marriage.

Michael Ely, of Tucson, married his partner of 43 years, James “Spider” Taylor in 2014 after Arizona’s ban on same-sex marriage was struck down. Unfortunately, Taylor, who was suffering from cancer by the time they married, was only alive for six months following their wedding.

Ely, who had served as his primary caregiver to Taylor, subsequently applied for and was denied survivor’s benefits because the couple had not been married the requisite nine months to be considered eligible.

Enlisting the help of Lambda Legal, Ely sued the Social Security Administration, arguing that its imposition of a nine-month marriage requirement is unconstitutional in places where same-sex couples were unable to be married for at least nine months due to 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,” Peter Renn, counsel for Lambda Legal, said in a statement.

“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,” he continued. “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.”

Ely says it’s unfair that he was denied survivor’s benefits not because of a choice he made, but because the government made it illegal for him to marry.

“My husband was the love of my life,” Ely said in a statement. “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…. 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.”

In September, Lambda Legal filed a similar lawsuit against the Social Security Administration on behalf of a 63-year-old lesbian who was unable to marry her partner of 27 years due to Washington State’s ban on same-sex marriage.

“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,” Renn said. “It’s like pouring salt in a wound. Denied equality in life, they are denied equality once again in death.

“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,” Renn added. But the government is holding their benefits hostage and imposing impossible-to-satisfy terms for their release.”

John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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