Letter to Carolyn Colvin, Social Security Administration Acting Commissioner- Same-Sex Spouses Deserve Equal Social Security Benefits


By: John Yarmuth, Peter Welch, Sandy Levin, Barbara Lee, Brian Higgins, David Scott, Hank Johnson, Jr., Adam Smith, John Lewis, Alan Lowenthal, Ron Kind, Joe Heck, Jr., Mark Pocan, Charlie Rangel, Marc Veasey, Ed Perlmutter, Eric Swalwell, Henry Waxman, Paul Tonko, Jerry Moran, Gwen Moore, Jim Langevin, Eleanor Norton, Raul Ruiz, Albio Sires, John Sarbanes, Jim Himes, José Serrano, Bobby Rush, Loretta Sanchez, Mike Michaud, Michelle Lujan Grisham, Annie Kuster, Mark Takano, John Dingell, Grace Meng, Steve Israel, John Larson, Mike Honda, David Price, Stephen Lynch, Brad Schneider, Sean Maloney, Kyrsten Sinema, Dan Maffei, Jackie Speier, Brad Sherman, Carolyn Maloney, Jerry McNerney, Adam Schiff, Patrick Murphy, Rick Larsen, John Tierney, Rosa DeLauro, Tim Bishop, Elizabeth Esty, John Delaney, G. K. Butterfield, Jr., Ami Bera, Joaquin Castro, Suzanne Bonamici, Cheri Bustos, Sam Farr, Kathy Castor, Lois Frankel, Mike Quigley, Gary Peters, Zoe Lofgren, Dave Loebsack, Frank Pallone, Jr., Lucille Roybal-Allard, Bennie Thompson, Niki Tsongas, Joe Kennedy III, Derek Kilmer, Jared Polis, Jared Huffman, Frederica Wilson, Gregory Meeks, Rush Holt, Jr., Louise Slaughter, Carol Shea-Porter, Dina Titus, Bill Foster, John Carney, Jr., Mike Doyle, Jr., Peter DeFazio, John Garamendi, Danny Davis, Ted Deutch, Alan Grayson, Anna Eshoo, Steve Cohen, Lloyd Doggett II, Raul Grijalva, Tammy Duckworth, Chaka Fattah, Sr., Donna Edwards, Lois Capps, Matt Cartwright, Diana DeGette, Alcee Hastings, Sr., Joe Garcia, Ron Barber, Keith Ellison, Katherine Clark, Chellie Pingree, Jim McGovern, Suzan DelBene, Earl Blumenauer, David Cicilline, Tony Cárdenas, Marcia Fudge, Eliot Engel, Yvette Clarke, Judy Chu, Mike Capuano, Julia Brownley, Luis Gutiérrez, Bob Brady, Allyson Schwartz
Date: May 22, 2014
Location: Washington, DC

May 22, 2014

The Honorable Carolyn W. Colvin

Acting Commissioner

Social Security Administration

6401 Security Boulevard

Baltimore, MD 21235

Dear Ms. Colvin:

We write to urge the Social Security Administration (SSA) to take all necessary steps to end the unconstitutional discrimination currently preventing many same-sex couples from obtaining the Social Security spousal benefits they have earned.

In United States v. Windsor, the Supreme Court ruled Section 3 of the Defense of Marriage Act--defining marriage as a union between one man and one woman--unconstitutional under the Due Process Clause of the Fifth Amendment. Following the ruling, the SSA released a statement encouraging individuals in same-sex marriages and other legal same-sex relationships to apply for benefits.

While we appreciate that SSA is approving claims for couples and surviving spouses residing in states, at the time of application, that recognize marriage for same-sex couples, this approach leaves out many who have worked to earn benefits for their spouses and families. Same-sex couples in civil unions and registered domestic partnerships, as well as married same-sex couples living in states that do not recognize same-sex marriages, have their applications held, effectively denying them the spouse-based Social Security benefits they have earned.

This discrimination is simply unacceptable. Although Social Security benefits are modest--for example, the average survivor's benefit is just $1,221 per month--nearly two-thirds of elderly beneficiaries rely on Social Security for the majority of their income. For more than one-third of elderly beneficiaries, Social Security provides at least 90 percent of their income. This income is especially important for same-sex couples. According to the Williams Institute at UCLA, lesbians who are 65 or older are twice as likely to be poor as heterosexual married couples. The same report indicates that gay male couples over 65 also have higher poverty rates than their heterosexual counterparts.

Furthermore, it is also important to note that the harm from this discriminatory policy extends beyond the same-sex couples who are denied the benefits they have earned. For example, for married same-sex couples currently living in states that recognize marriage equality, their fundamental freedom to choose to live anywhere in the United States--to accept a promotion or to be near family--is unfairly restricted by the threat of denied benefits. Should they change their residence before applying for benefits, they risk losing the Social Security protections they have earned.

SSA is required to base determinations for spouse-based benefits on how "the courts of the State" where the applicant resides would assess spousal status. However, SSA also recognizes spousal status if the applicant is "deemed" a spouse by SSA in circumstances where the applicant "would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a wife, husband, widow or widower of such insured individual." As extensive case law has demonstrated, states have frequently recognized particular attributes of marital relationships, such as the right to inherit property, even when the union is explicitly prohibited by state law.

Additionally, United States v. Windsor confirmed that equal protection principles compel the federal government to respect the valid marriages of same-sex couples. In light of this ruling, SSA has the responsibility to rely on its own assessment of how to properly uphold the constitutional rights of those married to someone of the same sex. Numerous federal district courts have ruled that a state's refusal to respect validly certified out-of-state marriages of same-sex couples is in violation of the equal protection principles upheld in United States v. Windsor.

Based upon our examination of Social Security statutes and court precedent, we believe it is clear that same-sex couples joined in marriage, civil unions and registered domestic partnerships should be deemed eligible for spouse-based benefits, regardless of where they live. While it is disappointing that it is only due to the failure of Congress to act upon the Respect for Marriage Act that these extraordinary efforts are necessary, we urge SSA to take all steps within its authority to end discrimination regarding the approval of spouse-based benefits.

We appreciate the extensive and ongoing effort that you and your agency have undertaken to reduce discrimination against same-sex couples, and we thank you for your consideration and your attention to this important issue.


Rep. Allyson Y. Schwartz

Rep. Ron Barber

Rep. Ami Bera

Rep. Timothy Bishop

Rep. Earl Blumenauer

Rep. Suzanne Bonamici

Rep. Robert A. Brady

Rep. Julia Brownley

Rep. Cheri Bustos

Rep. G.K. Butterfield

Rep. Lois Capps

Rep. Michael E. Capuano

Rep. Tony Cárdenas

Rep. John C. Carney Jr.

Rep. Matthew A. Cartwright

Rep. Kathy Castor

Rep. Joaquin Castro

Rep. Judy Chu

Rep. David N. Cicilline

Rep. Katherine M. Clark

Rep. Yvette D. Clarke

Rep. Steve Cohen

Rep. Susan A. Davis

Rep. Danny K. Davis

Rep. Peter A. DeFazio

Rep. Diana DeGette

Rep. John K. Delaney

Rep. Rosa L. DeLauro

Rep. Suzan K. DelBene

Rep. Theodore E. Deutch

Rep. John D. Dingell

Rep. Lloyd Doggett

Rep. Michael F. Doyle

Rep. Tammy Duckworth

Rep. Donna F. Edwards

Rep. Keith Ellison

Rep. Eliot L. Engel

Rep. Anna G. Eshoo

Rep. Elizabeth H. Esty

Rep. Sam Farr

Rep. Chaka Fattah

Rep. Bill Foster

Rep. Lois Frankel

Rep. Marcia L. Fudge

Rep. John Garamendi

Rep. Joe Garcia

Rep. Alan Grayson

Rep. Raúl M. Grijalva

Rep. Luis V. Gutiérrez

Rep. Alcee L. Hastings

Rep. Denny Heck

Rep. Brian Higgins

Rep. James A. Himes

Rep. Rush Holt

Rep. Michael M. Honda

Rep. Jared Huffman

Rep. Steve Israel

Rep. Henry C. "Hank" Johnson Jr.

Rep. Joseph P. Kennedy III

Rep. Derek Kilmer

Rep. Ron Kind

Rep. Ann McLane Kuster

Rep. James R. Langevin

Rep. Rick Larsen

Rep. John B. Larson

Rep. Barbara Lee

Rep. Sander M. Levin

Rep. John Lewis

Rep. David Loebsack

Rep. Zoe Lofgren

Rep. Alan S. Lowenthal

Rep. Ben Ray Lujan

Rep. Michelle Lujan Grisham

Rep. Stephen F. Lynch

Rep. Daniel B. Maffei

Rep. Carolyn B. Maloney

Rep. Sean Patrick Maloney

Rep. Carolyn McCarthy

Rep. Betty McCollum

Rep. Jim McDermott

Rep. James P. McGovern

Rep. Jerry McNerney

Rep. Gregory W. Meeks

Rep. Grace Meng

Rep. Michael H. Michaud

Rep. Gwen Moore

Rep. James P. Moran

Rep. Patrick Murphy

Rep. Eleanor Holmes Norton

Rep. Frank Pallone Jr.

Rep. Ed Perlmutter

Rep. Scott H. Peters

Rep. Gary C. Peters

Rep. Chellie Pingree

Rep. Mark Pocan

Rep. Jared Polis

Rep. David E. Price

Rep. Mike Quigley

Rep. Charles B. Rangel

Rep. Lucille Roybal-Allard

Rep. Raul Ruiz

Rep. Bobby L. Rush

Rep. Loretta Sanchez

Rep. John P. Sarbanes

Rep. Adam B. Schiff

Rep. Bradley S. Schneider

Rep. David Scott

Rep. José E. Serrano

Rep. Carol Shea-Porter

Rep. Brad Sherman

Rep. Kyrsten Sinema

Rep. Albio Sires

Rep. Louise Slaughter

Rep. Adam Smith

Rep. Jackie Speier

Rep. Eric Swalwell

Rep. Mark Takano

Rep. Mike Thompson

Rep. John F. Tierney

Rep. Dina Titus

Rep. Paul Tonko

Rep. Niki Tsongas

Rep. Chris Van Hollen

Rep. Juan Vargas

Rep. Marc A. Veasey

Rep. Henry A. Waxman

Rep. Peter Welch

Rep. Frederica S. Wilson

Rep. John A. Yarmuth