Supreme Court Keeps a Widow Waiting

      Ruth Bader Ginsburg won one of her first Supreme Court victories against sex discrimination by arguing in behalf of a young Air Force officer, Sharron Frontiero, over housing and medical benefits for her recently married husband. Married servicemen got the benefits automatically, but servicewomen had to prove that their husbands depended on them for more than half of their support.
      The Supreme Court ruled for Frontiero in 1973 in a decision that laid the groundwork for what ultimately became the current “intermediate scrutiny” test used to judge the validity of laws treating men and women differently because of their sex. Ginsburg often relates the back story of the decision as she recounts the history of gender equality in the United States.
      Ginsburg now needs to meet Kathy Barker, a widow who is being denied Social Security survivor benefits because of another discriminatory rule adopted by the federal government. The Social Security Administration (SSA) denied Barker benefits in September because the state of Texas, where she now lives, does not recognize her legal marriage to her now deceased wife, Sara, in Massachusetts in 2010.
      Texas is one of a rapidly dwindling number of states — now 18 — with laws on the books denying marriage rights to gay or lesbian couples. Three federal appeals courts have ruled same-sex marriage bans unconstitutional; the Supreme Court earlier this month decided to leave those decisions alone rather than review them to produce a nationwide ruling on the issue. Ginsburg said in September that there was “no hurry” for the court to act until there was a conflict among the federal circuits.
      Barker’s case proves the need for the court to act — sooner, not later. The Obama administration has gone pretty far in recognizing same-sex marriages for purposes of federal law since the Supreme Court struck down the Defense of Marriage Act (DOMA) in 2013. SSA announced in June that it would provide marriage-based benefits to married same-sex couples living in states that recognized their marriages. But the agency said that it is bound by a statutory provision to apply Texas law —  the state of Barker’s current “domicile” —  in determining her eligibility for spousal benefits.
      The civil rights organization Lambda Legal filed a lawsuit on Barker’s behalf last week [Oct. 22] in federal court in Washington, D.C., contesting the SSA’s policy. The agency’s “continued incorporation of discriminatory state marital laws” to deny spousal benefits violates the U.S. Constitution, the lawyers alleged in the 33-page lawsuit. Joining the suit as a co-plaintiff is the Washington-based advocacy group the National Committee to Preserve Social Security and Medicare.
      Barker is no less entitled to spousal Social Security benefits than Frontiero was when she applied for medical and housing benefits for her husband. Kathy and Sara had been together for 30 years before they got married late in 2010 in Massachusetts, where they had met and where Sara’s family lived. They had moved to Texas in 1984 to find less expensive housing and be closer to Kathy’s family.
      Sara survived breast cancer in the late 1980s, but she was diagnosed with an aggressive form of cancer in 2010 — prompting their decision to get married later that year. With Sara’s condition worsening, they both retired from their jobs in June 2011. Kathy was a full-time caregiver until Sara died in March 2012.
      Social Security provides a lump-sum death benefit and monthly survivor benefits to the surviving spouse of an opposite-sex marriage; since June, the same benefits have been available to the surviving spouse of a same-sex couple in states that recognize same-sex marriages. But the agency points to a wordy statutory provision (42 U.S.C. § 416(h)(1)(A)(i)) as requiring it to apply the marriage law of the state where the surviving spouse is “domiciled” at the time of the application for benefits or where the deceased spouse was “domiciled” at the time of the death.
      Based on Texas law, the agency in September denied Barker’s application for what she expected to be about $1,210 per month in survivor benefits. With those benefits, Barker, who is 62, says she can delay applying for her own retirement benefits until age 66; applying for early benefits would reduce the monthly payments by about $583 (from $2,130 to $1,547). The added monthly lifetime benefits, the suit notes, “would make a significant difference in the quality of Kathy’s life as she ages.”
      The lawsuit notes the “multitude” of state and federal courts that have ruled rule same-sex marriage bans unconstitutional in the year-plus since the DOMA decision, including a federal district court in Texas in February. The Fifth U.S. Circuit Court of Appeals is expected to hear arguments on the case before the end of the year; other circuit courts have moved faster, and the Fifth Circuit’s conservative bent makes the outcome uncertain.
      Barker’s Social Security suit will take a while to advance through the courts.  Perhaps a ruling by the Fifth Circuit to uphold the Texas law will give the Supreme Court what Ginsburg says it needs to resolve the underlying issue. Some court watchers say the delay is all for the good: giving the justices and the public time to get ready for the seemingly likely nationwide ruling to recognize freedom to marry for all. In the meantime, however, Kathy Barker waits for a Social Security check.