Michael Ely and James A. Taylor were in a committed relationship for 43 years. They considered themselves married, but Arizona, where they lived, did not—until 2014, when a federal court invalidated the state’s same-sex marriage ban. The couple promptly wed. Six months later, Taylor died of cancer. Ely applied for survivors benefits from the Social Security Administration, but the agency turned him away. Federal law required a couple to be married for at least nine months in the state where they reside before a surviving spouse can receive benefits. It didn’t matter that Ely and Taylor were barred from marriage by a law later voided as unconstitutional. Ely could not receive a dollar in survivors benefits.
On Wednesday, a federal judge ordered the Social Security Administration to pay up—not just to Ely, but to every American denied survivors benefits because of same-sex marriage bans. His sweeping decision provides benefits to thousands of LGBTQ surviving spouses, tearing down one of the last remaining vestiges of federal discrimination against same-sex couples. It will also test the judiciary’s continued commitment to gay rights following a sudden infusion of anti-gay judges under President Donald Trump.
Wednesday’s decision in Ely v. Saul is a reminder that, five years after the Supreme Court recognized same-sex couples’ constitutional right to marry, the United States has not actually achieved full marriage equality. In 2019, the Alaska government denied state benefits to a resident because she was married to a woman rather than a man. She was not the first gay Alaskan to face unconstitutional discrimination because of her sexuality. Just last January, a federal appeals court had to force Indiana to list same-sex parents on their child’s birth certificate, implementing a SCOTUS decision from 2017. Moreover, the Trump administration has effectively refused to recognize the marriages of same-sex binational couples, denying American citizenship to their children by claiming that the children were born “out of wedlock.”
The federal government’s denial of survivors benefits to same-sex couples married less than nine months has harmed Ely and others like him, depriving them of thousands of dollars every year while demeaning their marriages as unequal. So, in 2019, the LGBTQ advocacy firm Lambda Legal filed a class-action lawsuit arguing that the Social Security Administration cannot rely upon unconstitutional state laws that have since been overturned to justify discriminating against same-sex surviving spouses today.
U.S. Magistrate Judge Bruce M. Macdonald agreed. Survivors benefits, he explained, are included in “the panoply of governmental rights, benefits, and responsibilities” linked to marriage. And the Supreme Court has repeatedly held that the government must provide those privileges to same-sex couples on equal terms. The Social Security Administration insists that the law is “neutral” because it applies to all couples equally. But that, Macdonald explained, is a fiction. Although the federal law is neutral on its face, its use in these cases relies upon a state law that actively discriminated against same-sex couples. This “reliance on an unconstitutional law,” the judge concluded, illicitly “perpetuated” the “unconstitutional infringement on Mr. Ely and Mr. Taylor’s fundamental right to marriage.”
Macdonald directed the Social Security Administration to pay full survivors benefits to Ely, as well as other surviving spouses who would have been married for more than nine months but for their state’s same-sex marriage bans. Notably, that group includes Jim Obergefell, the named plaintiff in Obergefell v. Hodges, the 2015 Supreme Court decision that brought marriage equality to every state. An expert testified that there are at least 405 people who should qualify for survivor benefits, but who would have been denied, in the 14 states that only allowed same-sex marriage after Obergefell. There are likely thousands more in the remaining 36 states where marriage equality was legalized earlier. Macdonald’s broad decision, which applies nationwide, grants relief to everyone who was “prohibited by unconstitutional laws barring same-sex marriage from being married for at least nine months.” The Social Security Administration must now pay out their benefits.
The agency will likely appeal this decision to the 9th U.S. Circuit Court of Appeals, which Trump has recently infused with anti-gay judges. While the 9th Circuit still leans left, it’s quite possible that Trump judges will reverse Macdonald’s decision in an effort to roll back gay rights. If the Supreme Court takes the case, the new conservative majority—including Justice Brett Kavanaugh—will have to decide whether to bolster or erode Obergefell. If the majority is eager to chip away at marriage equality, it won’t have to wait long for the opportunity.