National Center for Lesbian Rights

Cases & Advocacy

Ely v. Saul Amicus

Status: Open

Outcome: Pending

Location: California, Arizona, Nationwide

Jurisdiction + Case Number: Ninth Circuit Court of Appeals, Nos. 20-16427, 20-16426, 20-16445

In February 2021, NCLR and GLBTQ Legal Advocates & Defenders (GLAD) filed amicus briefs in the Ninth Circuit Court of Appeals urging the court to affirm rulings in favor of same-sex surviving spouses who had been denied Social Security survivor benefits. The cases are Ely v. Saul, Driggs v. Saul, and Schmoll v. Saul.

The cases were brought by same-sex surviving spouses who were denied Social Security survivor benefits. Although the couples had been together for decades, they were barred from marriage for many years due to unconstitutional state marriage laws. The Social Security Administration denied them survivor benefits because their marriages did not satisfy the requirement that spouses be married for at least nine months before the wage earner’s death. Plaintiff Michael Ely and his husband, for example, were in a committed relationship since 1971 and had a commitment ceremony in 2007. They married in 2014, weeks after Arizona began allowing same-sex couples to marry. Mr. Ely’s husband passed away seven months later, and the Social Security Administration denied Mr. Ely spousal survivor benefits. The lawsuits argue that the denial of survivor benefits to same-sex surviving spouses based on the marriage duration requirement is unconstitutional where discriminatory state laws prevented the couples from marrying. In 2020, district courts in Arizona and California ruled in favor of the surviving spouses, and the court in Ely v. Saul certified a nationwide class action. The Social Security Administration appealed.

The amicus briefs from NCLR and GLAD urge the Ninth Circuit to affirm the district courts’ rulings. The briefs argue that the Social Security Administration’s reliance on unconstitutional marriage laws to determine eligibility for survivor benefits repeats the constitutional violations condemned in Obergefell v. Hodges, and that the remedy in Ely will be straightforward and easy to implement.

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