By: Austin Agostino

Through a common eye, the fight for marriage equality officially achieved success in the 2015 landmark Supreme Court decision, Obergefell v. Hodges. However, vast social justice issues still lurk just below the surface of banning state prohibitions of same-sex marriages. One of these disadvantages is the inability for a same-sex couples to reap the benefits of social security after one spouse unfortunately passes. Same sex couples fall into the umbrella term, LGBTQIA+. This string of letters typically stands for lesbian, gay, bisexual, transgender, queer/questioning, intersexual, ally/asexual, and any other identification. The acronym is an all-inclusive list of letters adaptable and palpable to a person’s identification.

Same sex couples have a harsh and tedious history with marriage inequality. Prior to the Obergefell decision, Baker v. Nelson effectively blocked the federal courts from touching same-sex couple issues. The Supreme Court held that the approval of a marriage license by the state of Minnesota was not a substantial question for court redress. States were left with defining the scope of marriage. San Francisco and the District of Columbia were two non-federal entities to extend domestic partnerships warranting hospital rights, but the allowances failed to fully recognize the benefits of married opposite-sex couples. Hawaii recognized same sex couples within the scope of marriage in the 1990’s. Undoubtably the most inhibiting impact on same sex marriage rights, the Defense of Marriage Act (DOMA), nationally extended marriage benefits to only heterosexual couples. Many important benefits of marriage such as sponsoring spouses for immigration benefits, social security, and joint income taxes were not applicable to same sex couples. Even with the first legal gay marriage in 2004, the couple did not qualify for federal marriage benefits. A stark divide developed between states in recognizing same sex marriage between 2003-2014. A massive federal victory came in 2012 in United States v. Windsor where a section of DOMA was struck down, thus extending tax exemptions for surviving same sex spouses. Other sections of DOMA still allowed for states to define the scope of marriage until 2015 in Obergefell.

Social Security only benefits couples legally married for 9 months or more prior to the event of a deceased partner. Obergefell forbids state bans on same sex marriage. Although the right to same sex marriage appears victorious, due to the unfair recognition of marriage prior, couples that excitedly married after national same-sex marriage recognition faced another obstacle. Since social security requires partners to be married for at least 9 months before a death of a spouse to qualify for social security benefits, same sex couples were not guaranteed marriage benefits with the Obergefell decision within this window of time.

An Arizona case, Ely v. Saul, involves a same sex couple married after the same sex ban was struck down. After a 43-year-long partnership, Michael Ely’s spouse, James Taylor (Spider), passed due to cancer 6 months after being federally married. Ely was denied social security benefits because the marriage was only recognized as 6 months long. Currently, the case prevailed at the lower court level and has been certified as a class action suit to represent any same sex couples in similar situations. The 9-month requirement is effectively discriminatory because countless same sex couples would have married decades ago but for the federal and state denial of same sex marriage recognition. The fight to fully recognize a class of same sex couples negatively impacted by this particularized harm is not over. Although social security benefits can mean food on the table, the implications are far greater. Recognizing same sex couples as a socially and constitutionally protected right still has nuanced side effects landmark cases do not directly address. The social security website generously requests similar plaintiffs to join the class action. As the case is on the Ninth Circuit Court of Appeals docket, the progress of the case can be checked here.

Even in speeding and successful Supreme Court rulings, social justice issues continue to exist. LGBTQIA+ continue to face challenge and hardship that the court system has not fully addressed yet, if at all. Social justice is a continual and perpetual journey. In high hopes, the symbolic and literal advantage of social security benefits for opposite sex couples will be extended to same sex couples indefinitely.

Austin graduated from Grand Canyon University with a Bachelor of Science in Psychology and a minor in Pre-Law. Austin is currently starting research on utilizing current infrastructure to extend renewable energy into distribution and reliance. Austin is a current 2L and plans to follow his interests in environmental justice and sustainability.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice ("LJSJ") is the first student-run and student-created online journal at Sandra Day O'Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.