October 23, 2014 at 2:52 pm EDT | by Chris Johnson
Lawsuit seeks Social Security benefits for same-sex couples

Kathy Murphy, gay news, Washington Blade

Kathy Murphy was denied Social Security survivor benefits upon the death of her spouse. (Photo courtesy Lambda Legal)

A new lawsuit seeks to compel the Obama administration to provide full Social Security benefits throughout the country to married same-sex couples, even if they live in states without marriage equality.

The 33-page complaint was filed Wednesday by the LGBT group Lambda Legal before the U.S. District Court for the District of Columbia on behalf a lesbian widow in Texas. The plaintiff, Kathy Murphy, was unable to access survivor benefits and a lump-sum death benefit payment upon the death of her spouse.

Murphy and her late spouse Sara Barker, who died of cancer in March 2012, were legally married in Massachusetts in 2010, but resided in Texas, which doesn’t recognize same-sex unions.

In a statement, Murphy said wants to be treated just like any other person “who has faced this same devastating loss” after losing their life partner.

“Sara and I were blessed with nearly 32 years together, taking care of each other in all the ways any committed couple does – physically, emotionally and financially. Sara wouldn’t have wanted me to be in a position like this – we promised to support each other as a couple and if one of us should pass away,” Murphy said. “We worked hard to close all the gaps before she died and now the federal government won’t do its part. That money will ensure that I can take care of the home that Sara and I shared together.”

Another named plaintiff in the case is the National Committee to Preserve Social Security & Medicare, a D.C.-based advocacy organization that seeks to protect Social Security benefits for all communities, including same-sex couples.

The Obama administration has sought to extend federal benefits to same-sex couples to the furthest extent possible under the law after the U.S. Supreme Court decision against the Defense of Marriage Act, and allowed Social Security benefits to flow to gay couples in states with marriage equality.

However, the Justice Department determined that it couldn’t afford certain Social Security benefits to gay couples in non-marriage equality states because U.S. code governing those benefits looks to the state of residence, not the state of celebration, to determine whether a couple is married.

But the lawsuit contends that continuing to deny benefits to married same-sex couples violates in non-marriage equality states violates the right to due process, equal protection and fundamental right to marry, and therefore “replicates and perpetuates the same basic Fifth Amendment violation condemned by the Supreme Court in Windsor.”

“To obtain the full status and dignity of marriage in the federal government’s eyes, same-sex spouses must domicile themselves in jurisdictions that recognize their marriages,” the lawsuit states. “This imposes an unconstitutional condition on the exercise of the fundamental constitutional right to marry the person of one’s choice, secured by the due process clause of the Fifth Amendment of the Constitution of the United States.”

The lawsuit seeks a permanent injunction barring the Social Security Administration from incorporating state bans on same-sex marriage into its determination on whether spousal benefits should flow to applicants. Further, the lawsuit asks the court to instruct the agency to provide benefits to Murphy without regard to the 12-month time limit imposed by Social Security law.

Dorothy Clark, a Social Security spokesperson, declined to comment on the lawsuit, saying the agency “does not comment on pending litigation.”

The new lawsuit isn’t the only pending challenge to the Social Security Administration in the way it handles benefits for same-sex couples. Another lawsuit filed last month by Gay & Lesbian Advocates & Defenders, Tevyaw v. Colvin, seeks benefits on behalf of a lesbian widow in Rhode Island and could lead the courts to rule that Social Security must provide benefits to married same-sex couples across the country.

And Social Security benefits aren’t the only benefits the Obama administration continues to withhold; the Justice Department also determined the federal government can’t afford spousal veterans benefits to married same-sex couples in non-marriage equality states. Litigation filed by Lambda Legal on behalf of the American Military Partner Association seeks to compel the Department of Veteran Affairs to afford these benefits to gay couples regardless of their state of residence.

Meanwhile, many LGBT advocates continued to call on the Obama administration to extend on its own volition both Social Security and veterans benefits to married same-sex couples in every state. Following the U.S. Supreme Court’s decision to review court rulings in favor of marriage equality, Sen. Dianne Feinstein (D-Calif.) wrote to President Obama to change U.S. policy with respect to these benefits. No response has yet been made.

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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