Gay & Lesbian Advocates & Defenders is pleased to announce a new publication aimed at helping married same-sex couples preserve their rights under Social Security while the organization continues its efforts to overturn Section 3 of the federal Defense of Marriage Act (DOMA), which prevents federal recognition of same-sex marriages.

“DOMA prevents married same-sex couples who have paid into the system their entire working lives from accessing vital Social Security benefits that other married couples receive without question,” said Senior Staff Attorney Vickie Henry. “We think that’s unconstitutional, and we’re suing to overturn this discriminatory law. But for now we’ve outlined steps eligible couples can take to preserve their rights and possibly receive benefits retroactively when DOMA is either struck down in court or repealed by Congress.”

Because DOMA Section 3 prevents their marriages from being recognized by the federal government, legally married same-sex couples cannot access federal programs that help other couples and families. In the context of Social Security, DOMA prevents a spouse in a same-sex marriage from claiming the Social Security benefit that would otherwise be available to a spouse, including:

• the spousal benefit
• the spousal disability benefit
• the lump-sum death benefit
• the survivor benefit

For instance, after Randy Lewis-Kendall, a plaintiff in GLAD’s Gill kont Biwo Jesyon Pèsonèllawsuit, lost his spouse Rob, he was denied the lump-sum death benefit that would have helped him pay for Rob’s funeral. Herb Burtis, another Gill plaintiff, was also denied the lump-sum benefit when his spouse John Ferris passed away, in addition to being denied the survivor benefit that would have boosted his monthly fixed income by $700.00.

GLAD’s new publication, Social Security Benefits and the Defense of Marriage Act: Can I Do Anything Now to Preserve My Rights? Yes!, details the various benefits that same-sex couples are denied under DOMA, how to file for those benefits now, how to appeal the denial of benefits based on DOMA, and how to keep your appeal alive to preserve your rights while the legal challenges are pending.

In addition to Gill kont Biwo Jesyon Pèsonèl, which may be heard by the U.S. Supreme Court as early as next year, GLAD is also litigating Pedersen kont Biwo Jesyon Pèsonèl, our second challenge to Section 3 of DOMA. Ruling in Pedersen last month, federal district court Judge Vanessa L. Bryant became the latest judge to declare DOMA unconstitutional.

Today, Gay & Lesbian Advocates & Defenders (GLAD) asked the Supreme Court to review Pedersen kont Biwo Jesyon Pèsonèl, a lawsuit challenging Section 3 of the Defense of Marriage Act (DOMA), which prohibits federal recognition of the marriages of same-sex couples. GLAD is representing six married couples and a widower, from Connecticut, Vermont, and New Hampshire, who have all been denied critical federal benefits because of DOMA.

“With each passing day, DOMA denies ordinary marital protections and heaps disrespect on our plaintiffs’ families, and thousands of married same-sex couples across the country,” says GLAD’s Mary L. Bonauto, co-lead counsel in Pedersen.

“Joanne Pedersen still cannot enroll her wife on her health insurance plan like other retirees from federal service. Lynda DeForge, like other workers whose spouses have serious medical conditions, still can’t take Family and Medical Leave Act leave to care for Raquel Ardin. Jerry Passaro continues to struggle without access to his late husband’s pension. The Artis, Kleinerman-Gehre and Savoy-Weiss families are each raising three children, but under DOMA pay extra federal income taxes or health insurance costs. DOMA even intrudes into the New Hampshire State Retirement System in denying a retired school teacher a health insurance subsidy for her spouse,” Bonauto adds. “These plaintiffs need to hear definitively from the Supreme Court whether or not the federal government will ultimately respect their love, commitment and legal bonds.”

In a decision issued July 31, Judge Vanessa L. Bryant of the U.S. District Court of Connecticut ruled in Pedersen that DOMA Section 3 unconstitutionally discriminates against our plaintiffs. GLAD filed what is known as a petition for “certiorari before judgment”— giving the Supreme Court an opportunity to immediately review the district court decision.

Read the petition

Among the arguments GLAD makes in petitioning the Supreme Court for immediate review in Pedersenare:
• the case raises a question of national importance;
• continued delay exacerbates the stigma and economic burdens on plaintiffs’ families and children;
• Congress has no legitimate interest in overriding state marriage policies where states license marriages and not the federal government;
• there is a practical need for a Supreme Court decision as there are conflicting decisions on DOMA’s constitutionality in various federal courts and additional challenges are pending;
• the Obama Administration is not defending the law in court but is still enforcing it, resulting in ever more lawsuits against DOMA; and
• Pedersen is an exceptionally good case for the Court’s review because it demonstrates DOMA’s impact on a range of important federal programs like federal income tax, Social Security, federal employee and retiree benefits, and federal statutes (e.g. the Family & Medical Leave Act (FMLA) and the Employment Retirement Income Security Act (ERISA).

GLAD’s petition for certiorari nan Pedersen comes after the Bipartisan Legal Advisory Group (BLAG), the congressional leadership body that is defending DOMA, and the Department of Justice each requested certiorari in our First Circuit Court DOMA challenge, Gill kont Biwo Jesyon Pèsonèl. DOJ also filed a petition for certiorari before judgment in Golinski v. Office of Personnel Management, a DOMA challenge from the Ninth Circuit Court.  Plaintiff Edith Schain Windsor also filed a petition for certioraribefore judgment in her DOMA challenge, Windsor kont Etazini, currently pending in the Second Circuit Court.