Image via Shutterstock
Image via Shutterstock

The U.S. Social Security Administration mandates that someone be married to their spouse for at least nine months before their death in order to receive survivors benefits.

Queer people in committed relationships who were denied survivors benefits following their partners’ deaths say the pandemic has forced them to make tough choices.    

Older LGBTQ Americans are struggling to support themselves amid the ongoing coronavirus outbreak.

Helen Thornton, 64, lost her income caring for people’s dogs while they’re away because her clients in Olympia, Washington, are staying home and have canceled appointments into May and June. After Gov. Jay Inslee issued an order prohibiting all non-essential businesses from conducting activities and operations on March 25, Thornton was forced to contact her mortgage company to ensure she wouldn’t have to make payments for the next six months, and she is trying to get in touch with her energy and utility companies as well to tell them she can’t pay those bills either.

On top of everything, Thornton, whose longtime partner, Marge Brown, died in 2006, faces another cruel reality: Like a number of other LGBTQ Americans, she has been denied survivors benefits by the U.S. Social Security Administration, thanks to a requirement that someone be married to their spouse for at least nine months before their death.

Thornton, who spent 27 years with Brown, would have around $1,800 more to live on had she not been denied those benefits. Brown died six years before Washington state allowed marriage equality. The U.S. Supreme Court’s landmark decision that ruled that same-sex couples had the fundamental right to marry, Obergefell v. Hodges, occurred nearly a decade later.

Thornton has tried to limit shopping to once a week. With money tight, she isn’t able to hoard supplies because she can’t afford to do so.

“I don’t have those financial resources to stock up and buy a something huge at Costco, so it’s definitely disenfranchising people who don’t have substantial checking or savings accounts. The inequality in this country is large and the coronavirus is definitely [shining] a light on that,” she said.

Countless numbers of other LGBTQ Americans are, like Thornton, losing out on hundreds or thousands of dollars each month on which they can survive while they remain in quarantine.

Josh Driggs, 65, who lives in the Phoenix area, has found himself in such a situation.

Driggs was with his partner Glenn for 40 years before they eventually married in California in March 2014, even though they knew their marriage would not be recognized in the state of Arizona.

Glenn Driggs passed away in June of 2014. Arizona legally recognized same-sex marriage in October of that same year.

Driggs has been denied $900 a month in survivors benefits as a result of that gap.

Driggs says he has to go to the local food bank to get his groceries. He can’t afford grocery delivery that would allow him to interact with fewer people despite the Centers for Disease Control and Prevention’s social distancing recommendations.

Although the food bank is taking precautions to keep people safe, Driggs would prefer not to go outside and wait in line, which carries health risks.

Karen Loewy, senior counsel for Lambda Legal, an organization focused on LGBTQ rights through litigation and policy work, said that the nine-month marriage requirement was established to stop people from taking advantage of elderly people and preventing fraudulent deathbed marriages that allow the surviving spouse to receive what was considered a large windfall at the time. But, she said, even that scenario seems “far-fetched.”

“Given what benefit levels are now, that seems like a far-fetched situation,” Loewy said, adding, “… Two folks who were either never able to marry because of discriminatory marriage laws or people who were only able to marry very soon in time before a spouse passed away is just incredibly unfair.”

In 2018, Lambda Legal filed a lawsuit on behalf of Thornton against the Social Security Administration. A U.S. magistrate judge has since recommended her case be certified as class action and that any denial of survivors benefits to surviving same-sex partners who were unable to marry because of discriminatory state bans be declared unconstitutional.

The judge ordered the Social Security Administration to provide those surviving partners a pathway to benefits.

Lambda Legal has also filed a lawsuit on behalf a Michael Ely, who was with his partner, James Taylor, for 43 years.

Taylor and Ely received a marriage license less than a week after Arizona struck down its ban on same-sex marriage in October 2014, but Taylor died six months later in May 2015. Ely hasn’t received any formal job training and is severely dyslexic and unable to work, so he has had to make do with the $800 a month that comes from Taylor’s pension benefits, according to the Washington Post.

If the lawsuit is certified as a class action, Driggs would also be a class member in Ely’s lawsuit.

Loewy said that although the provisions in the benefits statute apply to everyone, they’re treating people who are not similarly situated as if they are the same by essentially importing an underlying marriage ban.

“The Social Security Administration is repeating and perpetuating the same discrimination that the Supreme Court has already held to be unconstitutional,” she said.

“It’s both about the incorporation of the underlying discrimination and state marriage bans but it’s also unconstitutional in and of itself that when you have a requirement that no LGBT people could have met.”

The pandemic has additionally placed further strain on the courts — and, for people like Thornton, their legal proceedings must be adjusted accordingly.

Lambda Legal is currently awaiting a ruling from a U.S. District Court judge for her case that could come at any time without argument — or the judge could schedule a remote hearing.

Loewy said she would have preferred an argument before the decision, since they have requested it, and for Helen to be in the room for the judge to see who is being hurt by the nine-month requirement. But if the judge wants to do so remotely, they will comply.

Time is of the essence: Every month, Thornton loses more money she would have otherwise received in survivors benefits.

Both Driggs and Thornton, meanwhile, are grappling with how to pay bills and put food on the table during the pandemic. And once social distancing ends and the infection rates and death tolls start to fall, they’ll still be living with that economic insecurity.

Before it became clear how severely the pandemic had hit the United States, both faced difficult choices that people in straight or straight-appearing relationships who have also lost a spouse haven’t had to face.

Thornton put off repairs to her home and didn’t visit friends in neighboring cities for fear of spending too much on gas. Driggs said that although the monthly benefits he would have received from what his husband paid into the system likely would have been modest, “They can make the life-changing difference between having enough food, medication, or a roof over one’s head.” 

Since the denial of these benefits, he has had to leave the home he shared with his late husband and has been homeless twice. Once, he spent the night before Thanksgiving in a van in a Walmart parking lot. He has fallen behind on the rent.

“I don’t want anyone else in our community to have to experience that indignity simply because of who they loved,” he stated.

Published with permission of The American Independent Foundation.