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Gay widower’s court win ensures survivor benefits for LGBT couples

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Hundreds of older LGBT Americans shut out from Social Security benefits after the death of their spouses are set to gain access to them under a federal court decision.

Plaintiff Michael Ely can receive benefits as a widower even though his partner of more than 40 years, James Taylor, died of cancer just six months after they officially married, rather than the required nine months, according to a May 26 ruling in Arizona District Court.

U.S. Magistrate Judge Bruce Macdonald also certified Ely, 67, as representative of a class estimated at more than 400 Americans who got hitched after their states legalized same-sex marriage but later lost their spouses in fewer than nine months.

“If Mr. Ely and Mr. Taylor had been legally able to marry nine months prior to Mr. Taylor’s death this might be a different case; however, they were not,” Macdonald wrote. “The unconstitutional infringement on Mr. Ely and Mr. Taylor’s fundamental right to marriage is now being perpetuated further by the denial of Mr. Ely to obtain survivor’s benefits.”

The Social Security Administration and Department of Justice could appeal the decision in the Ninth Circuit, which could also lead to a Supreme Court case. The highest court ruled same-sex marriage bans unconstitutional in 2015, but some widows and widowers still can’t get benefits.

Representatives for the two government agencies, as well as their counsel, did not respond to requests for comment.

The gap in benefits left some members of the class action case homeless following the death of his husband, according to LGBT civil rights advocacy group Lambda Legal — which filed Ely’s initial case against the Social Security Administration in November 2018.

“This is a tremendous victory for many surviving same-sex spouses nationwide who have been locked out of critical benefits because they were unlawfully barred from marriage for most of their relationships,” Lambda Legal Counsel Peter Renn said in a statement. “No one should be penalized for being the victim of discrimination.”

Ely and Taylor wed in November 2014, less than a month after the same federal court ruled Arizona’s ban unconstitutional. The Supreme Court upheld the decision while striking down the remaining bans nationwide in Obergefell v. Hodges.

Other putative class action members who could start receiving survivor benefits include lead plaintiff James Obergefell, who married in 2013 only months prior to his 45-year-old husband’s death from Lou Gehrig's disease. Obergefell and John Arthur had been together 20 years.

The estimated number of members came from an academic researcher’s comparison of death rates and probabilities against the number of people who entered same-sex marriages in 14 states still subject to bans until 2015. Macdonald called it a conservative estimate since it didn’t include potential cases from other states that legalized same-sex marriage earlier.

Ely and Taylor began living together in 1971, and they moved to Tucson in the early 1990s. They also held a commitment ceremony in 2007, more than 35 years after they began living together. Six years later, doctors diagnosed Taylor with cancer after finding multiple tumors.

"My late husband, who went by the nickname 'Spider,' was the love of my life, and we got married as soon as the law permitted,” Ely said in a statement. “My husband paid into social security with every paycheck, and I know he can rest easier now knowing that I, at last, will start receiving the same benefits as other widowers.”

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