The Supreme Court rules on the Defense of Marriage Act this month. If the court strikes down the law, then same-sex married couples will have access to the same federal rights and benefits as opposite-sex married couples. This would be a significant victory for the LGBT community. There are 1,138 rights that hinge on federal recognition of a marriage. One of the most important rights �" especially for LGBT seniors �" is equal access to Social Security benefits. But even if DOMA falls, non-marital couples and LGBT families in states that refuse to recognize them will continue to face discrimination. "Living Outside the Safety Net: LGBT Families and Social Security" �" a new report from the Human Rights Campaign Foundation and the National Committee to Preserve Social Security and Medicare �" highlights this discrimination and proposes policy changes to fight it.
Pain of waiting
For Herb Burtis, victory can't come soon enough. Herb and his partner, John Ferris, were together for 60 years before Ferris died of Parkinson's disease. After Ferris died, because the federal government refused to recognize their marriage, Burtis was denied Social Security survivor benefits. This amounts to $700 per month �" enough money to cover Burtis's monthly medication bill. Today, Burtis is a plaintiff on another case challenging DOMA brought by Gay and Lesbian Advocates and Defenders. A win at the Supreme Court would make him and LGBT seniors across the country safer and much more economically secure.
Social Security benefits prevent many seniors from falling into poverty when a spouse dies or becomes disabled. LGBT people are more likely to be poor than straight people, especially LGBT people of color, reports Professor M.V. Lee Badgett of UCLA's Williams Institute in a new study. A key part of the problem, according to Badgett, is "lack of access to various tax and other financial benefits via exclusion from the right to marry," including Social Security.
Survivor benefits, like what Burtis is entitled to, are just one of several benefits under the Social Security Act. For couples where one spouse receives a much lower benefit payment (such as a stay-at-home spouse), there is a "spousal benefit" to boost that number to at least half of the higher-earning spouse's monthly amount. In addition, the higher-earning spouse can delay taking their benefit, increasing the amount that both she and her partner will take. "Social Security survivor and spousal benefits are one of the most important protections against poverty in old age," said Jerry McIntyre, directing attorney at the National Senior Citizens Law Center. Overall, Social Security retirement benefits keep half of Americans over age 65 above the poverty line. Two-thirds of seniors rely on it as their only source of income.
Social Security is also vital for children when a parent becomes disabled or dies. In those cases, a child or the surviving parent has a right to receive benefits based on the deceased or disabled parent's work history. Of the 4.4 million children receiving Social Security benefits in the United States because a parent has died or become disabled, one-third would be in poverty without these benefits.
But what if a state refuses to recognize that an LGBT person is a parent at all? California children of same-sex couples have protections. They are automatically recognized as the children of their non-biological parents if their parents are registered as domestic partners or married, and any second parent can undertake a second-parent adoption to further protect their parental rights. But of the 250,000 children across the country being raised in LGBT families, many live in states that refuse to recognize these parents. These children face the loss of significant benefits if their non-recognized parent dies or becomes disabled.
And even if DOMA is struck down by the court, only 12 states, three Indian nations, and Washington, D.C. currently recognize marriages entered into by same-sex couples. LGBT couples who are not married �" whether in recognition states or not �" will continue to face hardship and discrimination.
Action steps
Whatever happens this month, there are steps to take now. Anyone who would otherwise be eligible for spousal or survivor benefits absent DOMA should apply. Once denied, they should appeal. If the Supreme Court declares DOMA unconstitutional, benefits will be awarded retroactive based on the date of application. For people who have not yet applied, or have just become eligible, they should prepare to apply if the court strikes down DOMA. Contact an advocacy organization or an attorney with LGBT benefits experience for more information.
If DOMA is struck down, there are clear policy changes that would ensure that more LGBT families are included in these important protections. First, the Social Security Act's definition of "child" must be expanded to cover LGBT parents in states that refuse to recognize their family relationships. California has done this for years, recognizing de facto legal parents, even when the parents' relationship had no legal recognition. Second, the scope of who counts as a partner should also be expanded to include registered domestic partners, civil union couples, and non-recognized families across the country. Fairness means fairness for all of us.
The beginning, not the end
Ten years ago this month, in Lawrence v. Texas , the Supreme Court struck down as unconstitutional the last remaining sodomy laws. A ruling striking down DOMA would be another monumental victory on the road to full legal equality. But as with other victories before, it will also mark another beginning in the fight to fully expand legal protections and benefits to all of our families.
Daniel Redman is an elder law attorney in the San Francisco office of DLKLawGroup, P.C. To read the HRC report, visit http://tinyurl.com/l7j77md.