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Letter to Carolyn Colvin, Acting Commissioner of the Social Security Administration, and Loretta Lynch, Attorney General - Implement Supreme Court Marriage Equality Decisions

Dear Commissioner Colvin and Attorney General Lynch,

We are writing to inquire about the steps Social Security Administration (SSA) is taking to ensure that it can correctly account for marital status and administer benefits fairly to all individuals.

The Supreme Court's decisions in United States v. Windsor and Obergefell v. Hodges were major victories for our country's core values of fairness and equality. We understand that SSA continues to work to implement the Supreme Court's 2013 decision in United States v. Windsor that held Section 3 of the Defense of Marriage Act unconstitutional -- ending the federal government's system of discrimination against legally married same-sex couples. We are pleased that SSA in coordination with the Department of Justice is now working to implement the Supreme Court's 2015 decision in Obergefell v. Hodges that recognized equal rights of same-sex couples to marry. It is especially important that SSA has systems in place to ensure that it is treating all legal marriages equally.

We are concerned to hear that, for some time after the Supreme Court's Windsor decision, SSA continued to issue benefits to Supplemental Security Income recipients in same-sex marriages as though these individuals were single, and that for some SSI recipients, SSA is still doing so. Because benefits for unmarried individuals are higher than those for married individuals, SSA's failure to update its policies resulted in overpayments. We understand that SSA has sent overpayment notices to these individuals even though they were overpaid due to SSA's delayed implementation of the law.

Gay & Lesbian Advocates & Defenders recently brought a lawsuit alleging that SSA discriminated against Supplemental Security Income recipients in same-sex marriages when SSA failed to recognize these marriages -- even when the individuals had notified SSA that they were married. The court dismissed the case without addressing the merits, finding that the plaintiffs failed to exhaust administrative remedies.

SSA should not penalize people who are poor, elderly or disabled because SSA continued issuing benefits to these married individuals as though they were single. According to SSA's statute and regulations, SSA shall avoid penalizing an individual for overpayment if the individual is without fault and if recovery of the overpayment would be against equity and good conscience. While we understand that generally, SSA makes an individualized determination in the case of an overpayment, we urge SSA to issue a blanket waiver for recovery of overpayment for all of these individuals automatically -- especially since SSA's inability to update its systems resulted in SSA's continuing to apply Section 3 of the Defense of Marriage Act long after the Supreme Court struck it down as unconstitutional. Under these circumstances, any effort on the part of SSA to collect overpayments would exacerbate the unlawful discriminatory effect of the Defense of Marriage Act and would be against equity and good conscience.

We would appreciate a response to the questions below by November 18, 2015.

1) How many notices has SSA sent seeking to recoup overpayments from individuals married to someone of the same sex?

2) Is SSA currently recouping any money in these circumstances and, if so, from how many people?

3) How does SSA identify Supplemental Security Income recipients whose benefits should be reduced or suspended because their marriages are now recognized as a result of Windsor or Obergefell?

4) How long would it take for SSA to identify all of the individuals who have received incorrect payments from SSA due to SSA's mistakes in accounting for same-sex marriages?

5) Why would it be necessary and a good use of agency resources to put these individuals through an administrative appeal process one at a time?

6) How long does SSA expect a typical appeal process on these facts to take?

7) What is SSA doing to update its systems and processes so that SSA can correctly take marital status into account and administer benefits fairly to all individuals?

We urge SSA to implement the Supreme Court's decisions as soon as possible and to waive recovery of the overpayments that SSA made to the affected individuals. We appreciate your attention to this matter and look forward to your response.

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