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.
Sincerely,
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