Victory! Lambda Legal Secures Social Security Survivor's Benefits for Same-Sex Partners

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“This is a historic development with immense implications: survivor’s benefits are now equally available to everyone, including potentially thousands of same-sex partners who could not marry their loved ones and may have thought it was futile to apply.”
November 1, 2021

Today, the U.S. Department of Justice and the Social Security Administration (SSA) dismissed their Ninth Circuit appeals of two nationwide class actions won by Lambda Legal in favor of surviving same-sex spouses and partners denied equal access to social security survivor’s benefits. This development affects individuals who were unable to meet the requirement for survivor’s benefits that they be married for a minimum of nine months because of discriminatory marriage laws. Last year, federal district courts in Arizona and Washington struck down these individuals’ exclusion from benefits as unconstitutional in response to Lambda Legal lawsuits.

Lambda Legal filed the class actions in 2018: one on behalf of surviving same-sex spouses who married their loved ones but were prevented from being married for nine months (Ely v. Saul), and the other on behalf of surviving same-sex partners who were prevented from marrying their loved ones at all (Thornton v. Saul). For the first time, surviving same-sex partners who were barred from marrying when their partners were alive have the same pathway to benefits if they apply now or in the future as those protected by last year’s ruling in Thornton, which had been limited to people who had previously applied by November 2020.

“We commend the Biden administration for respecting the constitutional rights of same-sex couples and choosing the right side of history. No one should continue to pay the price for past discrimination. Today’s development ensures that the door stays open for seniors who were wrongly locked out from critical benefits because of discriminatory laws,” said Lambda Legal Counsel Peter Renn. “This a historic development with immense implications: survivor’s benefits are now equally available to everyone, including potentially thousands of same-sex partners who could not marry their loved ones and may have thought it was futile to apply.” 

Lambda Legal filed Thornton v. Saul (formerly Thornton v. Berryhill) in the U.S. District Court for the Western District of Washington against SSA on behalf of Helen Thornton, who sought survivor’s benefits based on her relationship with her partner of 27 years, Marge Brown, who died in 2006 before same-sex couples in the State of Washington were able to marry. Lambda Legal filed Ely v. Saul (formerly Ely v. Berryhill) in the U.S. District Court for the District of Arizona against SSA on behalf of Michael Ely, who married his partner of 43 years, James “Spider” Taylor, immediately after Arizona’s ban on marriage for same-sex couples was struck down in 2014. Taylor died of cancer six months later. Lambda Legal filed similar cases to Ely in New Mexico (Gonzales v. Saul) and North Carolina (Colosimo v. Saul). Both Ely and Thornton were subsequently certified as nationwide class actions, protecting individuals like James Obergefell, the namesake of the Supreme Court marriage equality victory, who was only able to be married for three months.

“The relief of today’s action by the federal government is almost palpable,” said Lambda Legal Senior Counsel and Seniors Strategist Karen Loewy. “For decades, same-sex couples paid into social security, just like different-sex couples. The difference was, only one group always had the freedom to marry, leading to gross inequalities that continued to linger. Today, that differential and discriminatory treatment conclusively ends, and surviving same-sex partners and spouses can securely access the benefits that they are owed and that can be essential to their continued health and safety.”

“I am relieved that my 27-year relationship with Margie will finally be respected by the government and that we will not be treated as legal strangers even in death,” said plaintiff Helen Thornton. “Marriage equality came too late for many of us, but it was not too late to fix this problem involving survivor’s benefits. I hope everyone who has been harmed by this problem, but never dared to apply for benefits, understands that this development is a game-changer. The pathway is now finally open to everyone.”

“I feel like a huge weight has been lifted off my chest,” said plaintiff Michael Ely. “One of Spider’s final hopes was that I would be able to access these benefits. I can finally breathe a sigh of relief that these benefits are now finally secure, not only for me but for everyone else who found themselves in the same boat.”

Read our FAQs about applying for benefits here:

Read more about Thornton v. Saul here:

Read more about Ely v. Saul here:

Lambda Legal’s attorneys working on the cases are Peter Renn, Karen Loewy, and Tara Borelli.  They are joined by co-counsel Robert Thornton and Linda Larson with Nossaman LLP in the Thornton class action and by co-counsel Brian Clymer and Autumn Menard in the Ely class action.



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