Murray bill would force Social Security to pay same-sex spouses survivor benefits

Nearly a year ago, the nation’s highest court told the federal government that it could no longer withhold marriage benefits from tens of thousands of same-sex married couples.

But that landmark Supreme Court decision made little difference in the lives of gay couples who live in the 33 states that ban same-sex marriage.

Midori Fujii and Kristie Kay Brittain got married in California, then returned to Indiana, which bans gay marriage. When Brittain died of ovarian cancer in 2011, Fujii found out that she would not be eligible to receive her wife’s Social Security survivor benefits.

For months, the Social Security Administration has put survivor benefit applications from same-sex spouses who live in states that don’t recognize gay marriage on hold. That’s because a portion of the decades-old law says that for a spouse to be eligible for benefits, his or her marriage must be recognized in the state where the couple currently resides.

Sen. Patty Murray, D-Wash., hopes to change that with a bill she’s introducing Wednesday called the Social Security and Marriage Equality (SAME) Act of 2014, Yahoo News has learned. The measure would amend the Social Security Act to grant survivor benefits to any individual legally married anywhere in the United States, regardless of whether he or she lives in a state that recognizes same-sex marriage.

It would also declare individuals who were legally married in another country eligible for Social Security survivor benefits, according to a summary of the legislation provided by her office.

“Your zip code should not determine whether or not your family will have the means to survive after the death of a spouse,” Murray said in a statement. “While I believe the Social Security Administration can, and should, resolve this inconsistency through administrative action, the SAME Act would provide a road map to ensure equality under our federal laws do not end at state lines.”

The proposal, co-sponsored by Sen. Mark Udall, D-Colo., aims to resolve questions left by United States v. Windsor. Gay marriage is now legal in 17 states, and the Windsor decision said the federal government must acknowledge those unions for the purposes of more than 1,000 federal laws and regulations that deal with spousal benefits.

But the justices provided little guidance on the question of what should happen to the tens of thousands of legally married same-sex couples who live in states that bar and do not recognize same-sex marriage. The Obama administration has implemented the decision broadly so far — allowing legally married same-sex couples to file taxes jointly no matter where they live, for example. But the administration decided to put the Social Security question on hold, pending a Justice Department review of the law. That means that same-sex spouses applying for Medicare benefits have also been told to wait for the review, since Medicare eligibility is decided by the same criteria.

“There’s no excuse for the federal government to continue withholding certain federal benefits from legally married same-sex couples," Udall said. “Marriages don’t end when couples cross state lines, and neither should the federal benefits they have earned.”

The legislation’s fate in Congress is unclear. White House officials declined to comment on the record about Murray's proposal.

Since the Windsor decision, 13 federal courts have granted injunctions to, or ruled in favor of, plaintiffs who want their same-sex marriage recognized in states that do not allow them, according to Susan Sommer of Lambda Legal. The states have appealed, arguing that being forced to recognize these unions infringes on their sovereignty.

Legislators aren’t waiting for the courts or the Obama administration to resolve the issue. Another bill, sponsored by Sen. Dianne Feinstein, D-Calif., called the Respect for Marriage Act, would repeal the remaining parts of the largely overturned 1996 Defense of Marriage Act left intact by the Supreme Court and extend Social Security survivor benefits to same-sex couples, regardless of what state they live in. Murray is a sponsor of that bill, as well.

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