I Wouldn't Bet On This Holding Up

     From the Arizona Capitol Times:

A federal magistrate has voided policies of the Social Security Administration that deny benefits to the survivors of some gay marriages.

In a precedent-setting decision, Bruce Macdonald said it was wrong for the government to conclude that Michael Ely did not meet the legal requirements to be considered the legal survivor of James A. Taylor.

Macdonald acknowledged that the policy requires that couples have been married for at least nine months for the survivor to get benefits. And that was not the case here, as Taylor died within six months of their wedding.

But the judge said that Ely was legally precluded from marrying Taylor in Arizona until October 2014 when a federal judge voided the state’s ban on same-sex nuptials. They wed the following month, with Taylor dying six months later.

And Macdonald said the government cannot use that unconstitutional ban to now penalize Ely. ...

     The Magistrate Judge has issued only a recommended decision that must be reviewed by the actual District Judge, assuming that the parties didn't consent to jurisdiction by the Magistrate Judge, which seems unlikely. After the District Judge decides, the case is likely to be appealed to the Court of Appeals and it could go to the Supreme Court after that. I certainly agree that denying benefits in this situation is unfair but I'm doubtful that the Courts will find it unconstitutional. Not everything that is unfair is unconstitutional.

     Update: I am told that the parties did consent to Magistrate Judge jurisdiction. I don’t know why either would have consented in this case. There can be an appeal to the District Court Judge and discretionary review in the Court of Appeals but no appeal of right to the Court of Appeals if the parties consent to Magistrate Judge jurisdiction.