The Washington PostDemocracy Dies in Darkness

His husband died months after they were able to marry. He’s still fighting for Social Security benefits.

Michael Ely, left, and his partner of 43 years, James Taylor, are pictured in 1976. Taylor died less than 9 months after the couple was legally allowed to marry, meaning Ely has been ineligible for Social Security survivor’s benefits.
Michael Ely, left, and his partner of 43 years, James Taylor, are pictured in 1976. Taylor died less than 9 months after the couple was legally allowed to marry, meaning Ely has been ineligible for Social Security survivor’s benefits. (Courtesy of Michael Ely)

Before their wedding day, Michael Ely and James Taylor hardly ever held hands in public.

When they first started living together, more than four decades earlier and only two years after the Stonewall uprising, it was dangerous to be an openly gay couple. Homosexuality was still considered a mental illness by the American Psychiatric Association.

But surrounded by close friends on that day in November 2014, two weeks after Arizona began legally recognizing same-sex marriages, Ely and Taylor walked out of the Pima County courthouse holding hands as a married couple.

“I can’t even begin to tell you how that felt,” Ely said. “After that we started holding hands everywhere we went.”

Seven months later, Taylor died of liver cancer, and Ely was left mourning the loss of his partner of 43 years, a skilled guitarist who he always called “Spider.” Because Taylor, a structural mechanic for aerospace company Bombardier, was the main breadwinner for the couple, Ely was also left without an income.

And now, more than three years after his partner’s death, Ely still has not qualified for Social Security survivor’s benefits. The Social Security Administration requires that a couple be married for at least nine months before a spouse’s death for a widow to collect survivor’s benefits. Because Ely was only married to Taylor for seven months before he died, he is not eligible.

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Last week, Lambda Legal, an LGBTQ legal advocacy organization, filed a lawsuit against the Social Security Administration on behalf of Ely, arguing that excluding surviving same-sex spouses from Social Security benefits based on the nine-month requirement violates their equal protection and due process rights under the Constitution.

“By denying same-sex couples an important benefit associated with marriage, that they paid for with their own taxes, the federal government is replicating the same harms of marriage inequality,” said Peter Renn, a lawyer with Lambda Legal. “They’re basically putting same-sex surviving spouses to an impossible test that they can’t meet.”

A spokesman with the Social Security Administration said the agency does not comment on pending litigation.

Ely is one of several same-sex surviving spouses across the country who have been denied social security benefits based on the nine-month requirement, Renn said. He could not estimate how many such cases exist, but said his office has received numerous calls from people in similar situations. He also anticipates more cases could emerge soon, now that spouses like Ely have exhausted all of their administrative options, appealing their cases through the Social Security Administration.

“People like Michael have been basically in administrative purgatory for a number of years,” Renn said.

Lambda Legal has also joined a lawsuit in New Mexico on behalf of Anthony Gonzales, whose husband Mark Johnson, a fifth-grade teacher, died of cancer in February 2014. Gonzales and Johnson were in a relationship for almost 16 years, and they got married on the first day they were legally allowed to do so in New Mexico — Aug. 27, 2013. But because their marriage lasted less than nine months, Gonzales has not been able to qualify for Social Security survivor’s benefits.

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“We paid into the Social Security Administration for 30 years through our jobs,” said 63-year-old Gonzales, who used to work for a nonprofit in Albuquerque but is now unemployed. “It wasn’t fair that we were being punished for something we had no control over.”

Ely and Taylor had wanted to get married decades before they were legally allowed to do so. In a public commitment ceremony in 2007, they exchanged rings engraved with the words “Don’t forget,” short for, “Don’t forget I love you.”

In the months before Taylor died, the ailing man worried most about his husband, Ely said. Ely recalled accompanying Taylor, who was then wheelchair-bound, to the Social Security office in March of 2015.

“He begged them, ‘please, please, I don’t think I can make nine months,” Ely said. “It was heartbreaking for me just watching him so worried about me. I promised him I would fight for it, and that’s what I’m doing.”

Ely, now 65, never went to college or received any formal job training. “I’m severely dyslexic. I have trouble with numbers, I can’t make change,” Ely said. Unable to work, he has been living off $800 monthly pension benefits from Taylor’s work at Bombardier. But those pension benefits will end in less than five years.

“I’m not asking for anything more than what I consider to be fair, to be justice,” Ely said.