President Biden Should Direct the Social Security Administration to Stop Penalizing Marriage

Lori Long was diagnosed in childhood with a rare disease that requires extensive medical treatments, supports, and services. She receives Social Security, earned for her by her now deceased parents. Medicare and Medicaid provide her health insurance.

Given the millions of beneficiaries and recipients who are affected by the marriage penalties, it is highly inefficient to require them to assert their religious claims individually to obtain relief.

In 2015, she met Mark Contreras. They fell in love, became engaged, and began to plan their wedding--only to discover that marriage would be a death sentence for Ms. Long.

Ms. Long's doctors have told her that losing the medical treatments, supports, and services which she receives from Medicare and Medicaid would be life-threatening. (Those same comprehensive treatments, supports, and services are generally not provided by private health insurance and are prohibitively expensive without insurance.)

The Social Security Act requires that, if Ms. Long and Mr. Contreras marry, her Social Security and Medicare benefits terminate the month before the date of their marriage. (The only exception is if Ms. Long were to marry another Social Security beneficiary, which Mr. Contreras is not. Nor would the benefits be reinstated if Mr. Contreras died or if they divorced.)

As heartbreaking as their inability to marry is, it is also against the law. It violates the Religious Freedom Restoration Act ("RFRA"), which prohibits any application of federal law that substantially burdens religious freedom.

Unquestionably, the termination of benefits upon marriage is an overwhelming burden on Ms. Long, who has been a devout, practicing Christian throughout her life and believes marriage is a holy sacrament. She and her fiance want to have children, but having children out of wedlock conflicts with their religious beliefs. They attend services where married couples are asked to stand and are blessed--and they are unable to receive that blessing. Moreover, as a Sunday school teacher, a Vacation Bible School teacher, and a leader in the youth ministry, she believes that she should model proper behavior to her students--including marriage.

The only exception RFRA allows is if the government has a compelling interest and, even then, the government loses unless there is no other less burdensome way to achieve its goal. There is no compelling reason to force Ms. Long--or anyone else--to choose between their religious beliefs and the benefits for which they otherwise qualify.

RFRA forbids the burden on Ms. Long's religious freedom by the potential termination of her Social Security benefits, just as the Supreme Court held that the withholding of unemployment benefits was an unconstitutional burden on Adell Sherbert's religious freedom. (The Religious Freedom Restoration Act explicitly restores the religious freedom test set forth in Ms. Sherbert's decision. The test had been undermined by subsequent decisions.)

In Ms. Sherbert's case, South Carolina's Employment Security Commission had denied her claim for unemployment benefits, because Ms. Sherbert, a Seventh-Day Adventist, had refused all positions that required her to work on Saturdays, her Sabbath. The agency had ruled that her desire to observe her Sabbath was not a good enough reason to refuse work that had been offered to her.

The South Carolina statute forced Ms. Sherbert to choose between attending Sabbath services and temporary cash benefits; the Social Security Act is forcing Ms. Long to choose between the lifetime, daily sacrament of marriage and the potential loss of her life. Tellingly, those burdens are much greater than the burden the Trump Administration found sufficient under RFRA to exempt religious organizations from having to complete a form to escape a requirement of providing contraceptive coverage as part of employer-provided health insurance.

Unless contraception is against an employer's religious beliefs, employers are required to include that coverage in the health insurance they provide. If contraception is against an employer's religion, all the Obama administration required was that the employer simply file a form stating that fact. The filing automatically freed employers from the obligation and cost of providing contraceptives. To not penalize the employees, though, the written filing caused the insurance company providing the health insurance to still provide the coverage but absorb the cost itself.

The Trump administration, relying on RFRA, reversed the requirement that employers file the form, on the grounds that the mere filing might make some employers feel complicit. To be clear, no religious organization had to provide its employees with insurance that covered contraception. All a religious organization would have had to do is file a claim one time.

If filing paperwork to avoid a legal obligation is an undue burden on religious liberty, and being pressured by financial need to work on one's Sabbath is an undue burden, the loss of life-sustaining benefits as a result of Ms. Long's religiously-motivated decision to marry is without question an undue burden on her religious liberty within the meaning of RFRA.

Accordingly, Ms. Long, who is represented by the Disability Rights Education and Defense Fund (DREDF), has just filed a written request asking the Social Security Administration to comply with RFRA and allow her to marry without losing her benefits. SSA should immediately grant this relief--and the Biden administration should do much more.

The provision in the law that would cause Ms. Long to lose her benefits if she married is only one of a number of anti-marriage provisions in the programs that SSA administers. Supplemental Security Income (SSI), also administered by SSA, pays two married recipients 25 percent less than two other recipients identical in all respects except that they simply live together as roommates. The married couple's allowable assets are also 25 percent lower. Moreover, SSI recipients can lose life-sustaining Medicaid benefits, along with SSI benefits, if they marry people with even extremely modest income or savings. That is because those resources are automatically attributed to the recipients themselves.

Importantly and heartbreakingly, these rules affect not only the religious freedom of those who receive the benefits, but their chosen partners, their families, and their broader communities. These laws mean that Mr. Contreras, who is not receiving a penny in benefits, is nonetheless prevented from sharing the commitment of marriage with the woman he loves.

At the very least, the Biden administration should publicize that it is removing the marriage penalties of those Social Security beneficiaries and SSI recipients who attest that they are not marrying, despite their religious convictions, because they would lose benefits.

But the Administration should go further. Given the millions of beneficiaries and recipients who are affected by the marriage penalties, it is highly inefficient to require them to assert their religious claims individually to obtain relief. Instead, the administration should start treating all those affected as they now treat unmarried individuals.

The Biden administration should immediately announce that adults with disabilities can marry and continue to receive the Social Security benefits their parents have earned for them. It should immediately announce that two SSI recipients who are married will be paid the same level of benefits as unmarried recipients are paid. It should immediately announce that two SSI recipients who are married will have the same higher assets limits that unmarried SSI recipients have.

By taking these bold steps, the Biden administration will be acting in defense of marriage and in support of religion. Using the authority of RFRA to undo marriage penalties is the right public policy and politics. It is pro-marriage, pro-religion, and pro-Social Security.