Sen. Patty Murray (D-Wash.) introduced legislation on Thursday that would ensure married same-sex couples have access to Social Security benefits wherever they move in the country, but insisted the Obama administration “can and should” take steps to guarantee these benefits on its own.
Murray introduced the Social Security & Marriage Equality Act of 2014 in the Senate, which would require the Social Security Administration to grant survivor and retirement benefits to married gay couples — even if these couples live in a non-marriage equality state.
“Unfortunately, when it came to federal survivor benefits, these marriages are currently classified as valid only if the couple lives in a state where same-sex marriage is recognized,” Murray said Thursday in a conference call with reporters.
In the aftermath of the U.S. Supreme Court striking down Section 3 of the Defense of Marriage Act, the Obama administration gradually afforded benefits to married same-sex couples, such as tax benefits and spousal benefits for federal workers and U.S. service members.
Although it’s granting Social Security benefits to gay couples in states with marriage equality, the administration has said it’s reviewing whether it can grant those benefits to gay couples who wed in a marriage-equality state, say Washington, move to another state that doesn’t recognize their union, such as Texas, and apply for benefits there.
Unlike other portions of U.S. code, Social Security law looks to the state of residence, not the state of celebration, to determine whether a couple is legally married, which currently precludes married same-sex couples from receiving the benefits in non-marriage states.
Even though she’s introducing the bill, Murray insisted during the call the administration can act on the issue on its own by broadly interpreting the DOMA decision to apply to Social Security benefits.
“While we believe that the Social Security Administration can and should resolve this inconsistency through administrative action, our bill, which is, as you heard, called the Social Security & Marriage Equality, or SAME, Act provides a roadmap to ensure access,” Murray said.
Murray said the legislation would ensure these benefits flow to same-sex couples in a way that would provide consistency among federal agencies, such as the Internal Revenue Service, which recognizes the unions of married same-sex couples regardless of where they live.
“Your zip code should not determine whether or not your family will have the means to survive after the death of a spouse, and while I believe the administration has made significant strides toward equal treatment of all marriages under federal law, that equality should not end at state lines,” Murray said.
The legislation is brief at two pages in length, and merely strikes a section of U.S. code related to Social Security to clarify jurisdictions don’t need to recognize same-sex marriage for married gay couples living there to receive benefits.
William “BJ” Jarrett, a Social Security spokesperson, responded to Murray by saying the agency is already processing some payments and couples who feel they’re entitled to benefits should apply for them.
“Social Security is now processing some surviving spouse and lump-sum death payment claims for same-sex couples and paying benefits where they are due,” Jarrett said. “We continue to work closely with the Department of Justice to develop and implement additional policy and processing instructions.”
Shin Inouye, a White House spokesperson, expressed a general sense without commenting explicitly on the bill that President Obama believes same-sex couples should be able to receive the federal benefits of marriage throughout the country.
“While we have not reviewed Senator Murray’s legislation, the President strongly believes that all married same-sex couples should be granted equal rights and benefits under the law, regardless of where they live,” Inouye said.
Whether the Social Security Administration can grant married same-sex couples retirement and survivor benefits in non-marriage equality states isn’t the only lingering question in the aftermath of the ruling against DOMA.
The Department of Veterans Affairs also hasn’t said whether it will grant veterans benefits to military same-sex couples — including disability benefits, survivor benefits and joint burial at a veterans cemetery — if couples apply for these benefits in states that don’t recognize their marriages. Just last week, Human Rights Campaign President Chad Griffin wrote a letter to Secretary of Veterans Affairs Eric Shinseki asking him to apply the DOMA decision broadly so veterans benefits can flow to married same-sex couples.
The sole original co-sponsor of the SAME Act is Sen. Mark Udall (D-Colo.), who’s been active in ensuring married same-sex couples can receive the federal spousal benefits, such as those afforded to veterans, following the Supreme Court decision against DOMA.
In a statement, Udall said “there’s no excuse” for the Obama administration to continue withholding these benefits to same-sex couples nearly a year after the DOMA decision.
“Marriages don’t end when couples cross state lines, and neither should the federal benefits they have earned,” Udall said. “Whether it’s veterans’ home loans or spousal survivor benefits, I won’t rest until the federal government treats all marriages equally.”
Udall is up for re-election in Colorado this year and is facing a stiff challenge from possible Republican nominee Cory Gardner. A Quinnipiac poll published late last month found Udall was in a virtual dead heat with Gardner. Udall was favored by 45 percent of voters, while 44 percent supported Gardner.
Sarah Warbelow, legal director for HRC, said Social Security survivor benefits are particularly important to same-sex couples if the deceased spouse was the primary breadwinner for the family; the benefit for surviving spouses of retirement age on average is $1,184 a month.
Further, Warbelow said the benefit is particularly important to children of married same-sex couples, who are currently identified as beneficiaries for survivors benefits, but only if they live in a state that has second-parent adoption.
“However, for couples who are living outside of those states, as the parent who was not able to legally adopt passes away, those children forfeit as much as $15,000 annually so they can no longer attain, and their parent can no longer attain on their behalf,” Warbelow said.
The legislation is similar to the Social Security Equality Act, introduced by Rep. Linda Sanchez (D-Calif.) in the House. However, while that bill includes language to ensure Social Security benefits flow to couples in civil unions or domestic partnerships, Murray’s legislation is restricted to ensuring benefits can flow to married same-sex couples wherever they live.
Another piece of legislation, the Respect for Marriage Act, would address problems in U.S. code for married same-sex couples with respect to all federal programs across the board. That bill was introduced by Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate.
Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, made the case for why the Obama administration should be able to act on this issue on its own, saying the Social Security statute only looks to whether a couple is validly married.
“If somebody from Missouri goes to Massachusetts and marries, they’re validly married,” Bonauto said. “It doesn’t say validly married under Missouri law. So our view is really that this statute is open-ended, this is not a problem and, in fact, the kind of roadmap that this same legislation provides is something the administration can do right now.”
Bonauto also emphasized the Obama administration should make the change on its own because the Supreme Court’s decision in United States v. Windsor said the federal government cannot continue to disrespect the valid marriages of same-sex couples.
“Not respecting the valid marriages of same-sex couples for Social Security purposes who live in non-marriage [equality] states seems to us to be a problem and inconsistent with Windsor,” Bonauto said.
While Murray said she hopes “our colleagues in the Senate agree and help us move forward quickly” on the SAME Act, the view the bill will move forward isn’t shared universally among LGBT advocates.
David Stacy, HRC’s government affairs director, said he doesn’t think enough time remains in the legislative calendar for Congress to move forward with the bill — even in the Democratic-controlled Senate — emphasizing the bill’s introduction was meant to draw attention to the issue.
“I don’t think it’ll be brought to the Senate floor this Congress,” Stacy said. “There aren’t many legislative days left, and not many opportunities to do that. Certainly, we’ll look for opportunities for ways to draw attention to it. We’ll work with the senator’s office about whether there are ways to move it forward legislatively, but given the short number of legislative days, I think it’s very difficult to move it forward this Congress.”
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