September 30, 2014 at 3:50 pm EDT | by Chris Johnson
Lawsuit seeks Social Security benefits for lesbian widow
A lawsuit seeks Social Security benefits for a lesbian widow.

A lawsuit seeks Social Security benefits for a lesbian widow.

A new lawsuit filed Monday on a behalf of a lesbian widow seeks parity of Social Security benefits between married same-sex and opposite-sex married couples throughout the country.

The litigation, Tevyaw v. Colvin, was filed by Gay & Lesbian Advocates & Defenders in the U.S. District Court of Rhode Island on behalf of a 56-year-old lesbian widow who was denied spousal disability benefits and a lump sum death payment from the Social Security Administration.

In 2005, Deborah Tevyaw was married in Massachusetts to Patricia Baker, a career Rhode Island corrections officer. After being diagnosed with lung cancer, Baker died in 2011. In her remaining months Baker lobbied for the legalization of gay marriage in Rhode Island, testifying on the issue before the state Senate.

Despite their legal marriage, Tevyaw was denied benefits upon her spouse’s death by the Social Security Administration, which at first asserted the Defense of Marriage Act blocked her from receiving benefits. But even after the Supreme Court ruled Section 3 of the law was unconstitutional, the agency allegedly continued to deny Tevyaw benefits on the basis that Rhode Island wouldn’t have recognized her marriage at the time of Baker’s death.

As a result of the Social Security Administration’s repeated denial of benefits, Tevyaw has been living on a monthly income of $732 for more than three years and was forced to sell her home she owned for more than 38 years because she can’t afford the mortgage, according to her lawsuit.

“I’ve lost my wife and my best friend, and Social Security has made that so much worse by telling me that in their eyes, I was not Pat’s wife,” said Tevyaw in a statement. “Not only is that hurtful and insulting, it has meant that I am living in poverty. I am not looking for a handout; this is money that Pat earned through hard work.”

Contrary to the claims of the Obama administration, the lawsuit asserts the Social Security Administration should recognize Tevyaw’s marriage because the law looks to whether courts in the state of domicile would find a couple “validly married.”

Further, the lawsuit notes Rhode Island Gov. Lincoln Chaffee’s executive order on May 24, 2012 recognizing out-of-state same-sex marriages asserts the state has recognized out-of-state marriages since at least 1906. Therefore, the complaint contends the directive should apply to Tevyaw’s marriage even though Chaffee signed it before Baker’s death.

If the Social Security Administration continues to interpret the law to deny Tevyaw benefits, the lawsuit alleges it would violate her right to equal protection and due process under the Fifth Amendment to the U.S. Constitution.

Janson Wu, GLAD’s senior staff attorney, said the Social Security Administration has undertaken a “misguided and mistaken application of the law” that has caused harm to same-sex couples.

“There is no doubt in our minds that Rhode Island would have recognized Pat and Deb as validly married at the time of Pat’s death in 2011, and that Social Security’s reading of the law is just plain wrong,” Wu said.

The lawsuit is filed after the Obama administration announced on the one-year anniversary of the Supreme Court decision against DOMA that Social Security cannot afford retirement and survivor spousal benefits to individuals in same-sex marriages in most situations if they live in non-marriage equality states.

Although before the announcement GLAD had contended affording these benefits to married same-sex couples regardless of state law would be consistent with the spirit of the DOMA decision, the administration determined passage of legislation is necessary along the lines of the Social Security & Marriage Equality Act or the Social Security & Medicare Parity Act.

One of the paragraphs in the lawsuit’s prayer for relief asks the court to declare that widows of same-sex marriages would be able to claim benefits as a result of the death of their spouses “so long as the courts of the state in which the insured individual is domiciled at the time of death would find that the marriage was validly entered into in the state where the marriage was celebrated.”

Wu told the Blade that language amounts to calling on the Social Security Administration to allow the flow of spousal benefits to married same-sex couples in states without marriage equality, although the courts would ultimately make the decision on whether that change is necessary as a result of the lawsuit.

William “BJ” Jarrett, a Social Security spokesperson, said his agency agrees the issue behind the lawsuit “deserves additional consideration” and said the administration plans to review its policy manuals based on analysis of Rhode Island state common law.

“We have been working with the DOJ to apply the Windsor decision to the existing framework of laws and regulations that control our programs and our collaboration has allowed us to process many claims,” Jarrett added. “The remaining issues are complex, and we must thoroughly analyze all the relevant factors to ensure that any new policies and procedures are consistent with the requirements of the Supreme Court’s decision, the Social Security Act, and our regulations. We will continue to publish instructions, as quickly as possible, and evaluate our procedures to streamline our processes.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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