Metro Weekly

Same-sex widower asks court to grant him Social Security survivor’s benefits

Michael Ely has been denied benefits because he was prevented from marrying by Arizona's same-sex marriage ban

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

Lawyers for an Arizona man whose partner died just six months after the state lifted its ban on same-sex marriage have asked a federal court to require the U.S. Social Security Administration to grant him survivor’s benefits.

Michael Ely, 66, of Tucson, Ariz., married his partner of 43 years, James “Spider” Taylor, in 2014, after Arizona’s ban on same-sex marriage was struck down by a court. Unfortunately, Taylor — a mechanic who had served as the breadwinner for the bulk of their relationship — was suffering from cancer by the time they married. He died six months after their wedding.

Ely applied for survivor’s benefits but was told his application had been rejected  because the couple had not been married the requisite nine months for Ely to be considered eligible for those benefits. Enlisting the help of Lambda Legal, Ely sued the Social Security Administration, arguing that the waiting period — at least as it applies to same-sex spouses or partners who were barred from marrying under the law — is unconstitutional.

On Friday, Lambda Legal also asked the U.S. District Court for the District of Arizona to end this type of discrimination against all similarly situated same-sex spouses who were unable to meet Social Security’s nine-month requirement before their partners passed away.

“Same-sex couples, including those together for more than 40 years, rushed to marry as soon as the laws allowed,” Lambda Legal Counsel Peter Renn said in a statement. “To hold them to a standard that discriminatory marriage bans made impossible to meet rubs salt in the wound of their loss.”

Related: Lambda Legal seeks class action status in LGBTQ Social Security survivor benefits lawsuit

Renn added: “Michael and his husband got a marriage license less than a week after Arizona ended its exclusion of same-sex couples from marriage, but the Social Security Administration maintains that they needed to have married even earlier, at a time when that was legally impossible under state law. That is essentially doubling down on discriminatory marriage bans that have already been declared unconstitutional and using them to inflict profound and ongoing harm today.”

“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. … It was so painful, to be told by Social Security that we had not been married long enough. We were together for 43 years, and my husband paid into the social security system with every paycheck for 40-plus years, but I’m barred from receiving the same benefits as other widowers.”

Earlier this year, a federal magistrate judge for the U.S. District Court for the Western District of Washington sided with same-sex partners in a similar class-action lawsuit brought by Lambda Legal. The judge in that case, J. Richard Creatura, found that Social Security was inflicting “substantial and continuing harm” on widowers facing a similar situation as Ely, including a lesbian whose partner had died prior to Washington State voters overturning the marriage ban by referendum in 2008.

Lambda Legal is currently waging lawsuits on behalf of at least two other same-sex spouses whose marriages failed to meet the nine-month time requirement, arguing that the Social Security Administration should act now and end the exclusion for all similarly situated people who had been barred from marrying prior to their partners’ deaths. 

“We have long heard from surviving spouses who, like Michael, were in decades-long relationships and built lives together, but were only able to marry late in life due to discriminatory marriage bans,” Karen Loewy, senior counsel and Seniors Strategist at Lambda Legal, said in a statement. “And now, they are confronting old age or disability without the critical protections that Social Security provides.”

One such surviving spouse, Josh Driggs, from Phoenix, has already experienced homelessness because he fell behind in rent after being denied survivor’s benefits despite having been in a 40-year relationship with his late husband, Glenn Driggs.

“While these monthly benefits may seem modest, they can make the life-changing difference between having enough food, medication, or a roof over one’s head,” Josh Driggs said. “For me, the denial left me out in the cold, literally.  I had to leave the home that my husband and I had shared, and I became homeless twice — once on the eve of Thanksgiving, which I spent in my van in a Wal-Mart parking lot. I don’t want anyone else in our community to have to experience that indignity simply because of who they loved.”

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