In February 2021, NCLR and GLBTQ Legal Advocates & Defenders (GLAD) filed amicus briefs urging the Ninth Circuit Court of Appeals to affirm rulings in favor of surviving same-sex spouses who were denied equal access to Social Security survivor’s benefits. The cases are Ely v. Saul, a nationwide class action, and two individual cases, Driggs v. Saul and Schmoll v. Saul. In November 2021, the Social Security Administration (SSA) dismissed its appeals in these cases as well as its appeal in Thornton v. Saul, a class action on behalf of surviving same-sex partners.
The cases were brought by surviving same-sex spouses and partners who could not meet the requirements for survivor’s benefits due to unconstitutional state marriage laws. Although the couples had been together for decades, SSA denied survivor’s benefits because the couples had not been married for at least nine months when the wage earner died. Plaintiff Michael Ely and his husband, for example, were in a 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 SSA denied Mr. Ely survivor’s benefits. In 2020, district courts in Arizona and California ruled in favor of the surviving spouses, and the court in Ely certified a nationwide class action. A district court in Washington also certified a nationwide class action in Thornton. SSA 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 district court’s remedy in Ely will be straightforward and easy to implement.
On November 1, 2021, SSA dismissed its appeals. SSA is now processing survivor’s benefits claims for all surviving same-sex spouses and partners who were barred from marriage, regardless of whether they had applied for those benefits at any point in the past. Lambda Legal and pro bono counsel represent the classes in Ely and Thornton. More information for surviving spouses and partners is available here.