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Same-sex marriage and Social Security

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POSTED March 29, 2013 10:09 p.m.

As I am writing this, the Supreme Court is hearing two cases involving the controversial topic of same sex marriage. This is an issue I have discussed before in this column, obviously with respect to how it might impact Social Security. I decided to resurrect that column and reprint it here because the subject is so timely.

So here is a question and answer I printed in that original column. And I will follow it up with some feedback I got from my readers after the column ran the first time.

Q: I am a 61-year-old gay man who is about to retire. I have a 60-year-old partner. We have been together now for 38 years. I have worked all my life. My partner has spent most of his life as a stay-at-home husband and father. (Yes, we raised a son and daughter, both of whom are now very successful.) I really enjoy your column and have learned a lot from it. But I have never seen a column in which you have discussed Social Security issues that impact gays and lesbians, especially with respect to benefits for spouses. What can you tell us about this?

A: Frankly, there isn't much to tell you that doesn't apply to everyone else. In almost all respects, Social Security is the same for straight people and for gay people. You said you worked all your life. So you will qualify for reduced Social Security retirement benefits when you turn 62. Or you can choose to wait until 66 to get your full rate. Or you can even wait until age 70 to retire, at which point you would get your full benefit plus a 32 percent delayed retirement bonus.

But there is a huge difference for gays and lesbians when it comes to spousal benefits. There aren't any!

I am used to telling people that Social Security follows state law when it comes to marital relationships. In other words, if your state says you are legally married, then Social Security will consider you legally married. Of course, all states recognize routine marriages between a man and woman. But this rule becomes an especially important issue for people involved in "common law" relationships. There are only a few states that recognize common law marriages, so there are only a few states where people in such relationships will qualify for spousal benefits from Social Security.

As most people know, there are also only a few states that recognize same sex marriages as being legal. So normally I would be able to tell you that if you were married in one of those states, your partner would qualify for Social Security spousal benefits on your record.

Unfortunately, as I'm sure you know, there is a federal law that trumps state laws on these matters. It has the silly name (in my opinion) of the Defense of Marriage Act, or DOMA. Among other things, that law essentially says that when it comes to any kind of spousal benefit from a federal program (and Social Security is the biggest of all federal programs), those benefits can only be paid if the marriage is between a man and a woman.

As one might guess, that law was passed by a very conservative Congress in 1996. President Clinton signed the bill into law and has pretty much regretted that move ever since.

I know I am putting my liberal stripes on display here. My conservative readers will take offense at what I am saying and will send emails blasting me for my views. But I just have a hard time understanding why the law allows a divorced spouse in a heterosexual relationship who was married for only 10 years to claim full benefits from the ex-spouse's Social Security record — and possibly be due benefits from another account if there was a second failed marriage that lasted 10 years. Yet the partner of the person who wrote this letter, someone who has been together as part of a couple for almost 40 years, someone who has raised two wonderful kids, can't claim a nickel of his partner's Social Security benefits. Where is the justice in that?

As you might guess, after that column initially ran about seven months ago, I got many responses. And frankly, the replies really surprised me. Out of perhaps 200 emails that I received, only four of them took issue with what I wrote. Three of those four responses quoted bible verses and essentially told me that my "sin" for supporting gay and lesbian marriage was as damnable as the "transgressions" committed by same-sex couples themselves. Two of the four wondered if I would support marriage between a man and an animal. Really! That's how wacky some people's thought process can be.

But as I said, the VAST majority of responses I received were reasoned and thoughtful. Even many folks who labeled themselves as conservative wrote to say they thought that if a state considered a person validly married, then the federal government should respect that state's laws and offer benefits, including Social Security spousal benefits, to the couples involved in such legal unions.

I think the mood of the country is changing on this issue. In 1997, I had written another column about same sex marriage and Social Security. And I was almost laughed off the newspaper pages. Only one or two readers wrote to say they agreed with me. But 15 years later, almost everyone agreed. We will soon find out if the Supreme Court is on top of the mood swing in this country, or if they are still living in the past.

 

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