Anthony Gonzales* met his future husband, Mark Johnson, at an Albuquerque gay bar, twenty years ago this month. Soon after, Gonzales and Johnson moved in and began their life together. In 2013, they made their union legally binding when they joined hundreds of other couples on Albuquerque’s Civic Plaza on the first day counties across New Mexico began legally recognizing same sex marriages. Almost six month later, 180 days to be exact, Johnson died of cancer.

Now, just weeks before his wedding anniversary, Gonzales has filed a federal civil suit against the U.S. Government’s Social Security Administration for the monetary benefits he said he is owed. The suit, filed in June, asks for Social Security survivor benefits or money usually paid out to a surviving spouse. But, the Social Security Administration requires couples to be married for nine months before a surviving spouse can collect those specific benefits from their deceased partner. That’s the case for Gonzales and thousands of others, even though the administration grants other exceptions for those who have been able to legally marry for centuries.

Gonzales said he is less concerned with the money and more motivated by moral principle.

“Mark and I paid Social Security taxes our entire life,” Gonzales said. “It’s just a matter of fairness. We want to be treated like everyone else.”

It’s in the details

In 2015, Gonzales first applied for benefits, based on what Johnson paid into Social Security, and was promptly denied because the couple hadn’t been legally married for nine months. After exhausting all of the administrative options and even a push from U.S. Rep. Michelle Lujan Grisham to change the law, Gonzales is now asking a federal judge to weigh in.

Wording, or lack thereof, within Social Security regulations is what seems to be preventing Gonzales from claiming money from Johnson’s Social Security.

Part of Gonzales’ legal argument is that the Social Security Administration allows for other exceptions to collect financial benefits from a deceased spouse. If a spouse dies while in “in the line of duty” or deployed as “a member of the uniformed services” and was married for less than nine months, for example, the surviving spouse can collect survivors benefits. There is another exception  if one partner’s death was unexpected or accidental. Further, in a rather specific scenario involving behavioral health, the administrative code allows for a surviving partner to get benefits with no marriage at all. Under this exception if a couple is prevented from being married because one partner could not legally divorce a prior spouse due to “mental incompetence or similar incapacity” survivor benefits could be considered.

While the Social Security Administration releases benefits to same sex couples who were unable to legally marry, the specific survivor benefits Gonzales applied for are not covered.

As his lawsuit notes, a Social Security Administrative Law Judge who ultimately denied Gonzales’ administrative appeal encouraged Gonzales to take his case to court. The administrative judge said the “unequal treatment of same-sex couples who wished to marry prior to the legalization of same-sex marriage in New Mexico when compared to opposite-sex couples” and the fact that  non-married, same-sex couples qualified for certain other benefits warranted a federal court review.

Still, Gonzales likely has a long road ahead of him.

Just the beginning

Gonzales told NM Political Report he’s struggled over the decision to move forward with his fight for survivor benefits since his first administrative denial.

“It’s not easy,” Gonzales said of the process. “It brings back a lot of memories of Mark.”

He has also heard polite encouragement to just drop the whole thing from some friends  and not-so-polite discouragement from commenters in the social media realm.

“I try to ignore them,” Gonzales said of his more harsh critics online.

But, he said, “If someone doesn’t fight for rights, nothing’s going to change.”

The case is still in the early stages, no hearings have been scheduled and Gonzales is hesitant to speculate on an outcome, but is prepared for a long process.

“It’s going to take years,” Gonzales said, considering the possibility of an appeal from either side.

Whatever the outcome of his case, Gonzales said no court can offer him the ideal one.

“I wish I wasn’t in this position, Gonzales said through tears. “I’d rather have him in my life than have to fight the government for something I deserve.”

*Anthony Gonzales is the uncle of NM Political Report Editor Matthew Reichbach. Reichbach sat out of the editorial process of this story to avoid conflicts of interest. Instead, Environmental Reporter Laura Paskus edited Reporter Andy Lyman’s story.