The rules for same-sex survivor benefits were quietly changed. Now LGBTQ advocates are pushing to get the word out

When same-sex couples won the right to marry almost eight years ago, thousands of people across the country rushed out to obtain marriage licenses. 

The historic U.S. Supreme Court ruling, known as Obergefell v. Hodges, became a beacon of liberation and ended marriage discrimination in every state. But the fight for marriage equality was far from over.

In that case, justices did not offer an opinion on how same-sex marriage equality would fit into other facets of life, which resulted in a vast patchwork of local, state and federal policies on issues ranging from adoption to estate planning.

But a recent ruling by the federal government quietly addressed one of the key issues same-sex couples face: They can now claim survivor benefits from Social Security and are also entitled to receive it retroactively. 

The only problem is, few people know about it. 

“Getting the word out has been an enormous challenge,” said Peter Renn, an attorney in the Western regional office of Lambda Legal, a New York-based civil rights organization focusing on LGBTQ communities as well as people living with HIV/AIDS. 

The ruling, which barely made headlines amid news of the pandemic and surge in COVID cases, could have a major impact in the South, home to the largest LGBTQ population in the nation and where the battle over equality has persistently clashed with the region’s conservative leadership and state laws. 

For decades, Atlanta has been a gay mecca, especially for African Americans. Other Southern cities with large communities of LGBTQ communities include Austin, Houston, Dallas, Miami and New Orleans. 

Still, the South and other areas of the country continue to lack protections against workplace discrimination aimed at LGBTQ people. Same-sex couples have faced problems obtaining marriage certificates, birth certificates for adopted children, social security benefits, Medicaid, Medicare, benefits relating to the Family Medical Leave Act, and even doing their taxesIn South Carolina, for example, same sex couples are not included in domestic violence laws.

How many people are entitled to the survivor benefit is unclear. So far, the Social Security Administration has identified about 700 same-sex people who applied and were unconstitutionally denied survivor benefits. 

“There is no national list of same-sex couples who were never able to marry,” Renn said. “And the overwhelming majority of surviving same-sex partners understandably never applied for survivor’s benefits in the past, because that would have been like applying for a job where the sign said ‘gay people need not apply.'” 

The recent federal ruling on survivor benefits came on the heels of litigation from nonprofit advocacy and law firms working on behalf of survivors.  

Lambda Legal won two notable federal cases out of Arizona during the Trump presidency that helped further the cause. The first suit was filed on behalf of people whose partners died before same sex marriage was legalized.

The second suit was more complicated. It was filed on behalf of people who were married less than nine months before their partners died. Nine months is how long couples usually need to be married before survivor benefits are awarded. Lambda successfully argued that couples whose partners died before nine months would have been married sooner had it not been for the discriminatory marriage laws. The judges in both cases said the denial of the benefits was unconstitutional and ordered immediate payouts to people harmed by the discrimination.

Trump’s Justice Department appealed the ruling in court and ultimately lost. Once President Joe Biden took office, the Justice Department dropped its appeals. The only thing people have to prove is that they were in a committed relationship and would have married had they been allowed.

While the latest ruling is a major victory for same-sex survivors, the next legal fight has already begun. 

“There are ongoing issues that have yet to be resolved involving veterans benefits and pensions, where marriage-related requirements continue to block same-sex survivors from equal access to benefits,” said Renn. “The general principle across all contexts is that same-sex survivors should be restored to the same position they would have been in, had unconstitutional marriage laws never existed.”

Renn added that the issue of pensions is not currently being fought in court but there are efforts in Congress to address the issue. 

Currently Lambda has an information page to help people navigate the two lawsuits and how it applies to them.

The Social Security Administration also has a helpful page relating to same sex couples in general and survivor benefits.

The Reckon Report.
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