A lesbian widow in Austin is suing the Social Security Administration for denying her survivor benefits because it thinks Texas’s doomed same-sex marriage ban is more important.

Unless you’re a stone-hearted government agency, you’ll need a box of Kleenex as you read the gut-wrenching lawsuit’s story. Kathy Murphy (photo) and Sara Barker had been a couple for 30 years when, in 2010, they visited Massachusetts to be wed under that state’s pioneering marriage-equality law. Less than two years later, Barker died of cancer.

After last year’s landmark Supreme Court decision in U.S. v. Windsor – a similar case of a lesbian widow seeking survivor benefits available to straights – Murphy applied for Social Security’s standard package. The SSA responded with a cold-blooded letter declaring “you are not Sara Elizabeth Barker’s widow.”

Turns out the SSA, unlike nearly every other federal agency in the post-Windsor world, has decided to follow state laws in determining whether a couple is legally married. And Texas still bans same-sex marriage, won't recognize ones legally performed elsewhere and even has driver's license issues for children with two moms.

The denial means Murphy isn't receiving $583 a month in spousal benefits, according to Lone Star Q. Lambda Legal and the National Committee to Preserve Social Security & Medicare sued, calling that a “profound affront,” a “humiliation” and totally unconstitutional. The groups sued the SSA on Oct. 22 in federal court in Washington, D.C.

Susan Sommer, Lambda’s constitutional litigation director, says in a press release that “living in the wrong state” shouldn't impact spousal benefits.

“SSA should not be telling widowed lesbians and gay men already grieving the loss of a spouse, ‘You live in the wrong state, so you don’t get Social Security spousal benefits.’ Thousands of same-sex spouses, like our client Kathy Murphy, have married, even though their home states refuse to recognize their relationships. Since Windsor, these aging lesbian and gay Americans believe that, at the very least, their marriages finally will be respected by the federal government. But, relying on discriminatory state marriage bans declared unconstitutional by an avalanche of courts around the country, SSA continues to deny same-sex spouses their benefits. Widows, widowers and retirees, wherever they live, need Social Security spousal benefits, earned through years of hard work, to support them as they age. They should not have to wait one more day to be treated with dignity by the federal government.”

The SSA policy violates the Constitution’s guarantees of due process, equal protection and right to travel freely, the lawsuit claims. And it notes that same-sex marriage bans are falling across the country. In fact, Texas’s ban already was ruled unconstitutional by a federal court in De Leon v. Perry, but the state is appealing.

Murphy and Barker originally met in Massachusetts in 1979, where they both worked at the MIT Press. They moved to Austin in 1984 for cheaper housing and built a life together, including registering as domestic partners back in 1993. Their 2010 marriage was held at the Unitarian Universalist Church headquarters in Boston. Afterward, they retired in 2011 from their jobs at the Texas Department of Transportation, and Murphy became the full-time caregiver for the ailing Barker until her 2012 death.

Murphy says in a prepared statement that the federal government “won't do its part.”

“Sara and I were blessed with nearly 32 years together, taking care of each other in all the ways any committed couple does – physically, emotionally and financially. Sara wouldn’t have wanted me to be in a position like this – we promised to support each other as a couple and if one of us should pass away. We worked hard to close all the gaps before she died, and now the federal government won’t do its part. That money will ensure that I can take care of the home that Sara and I shared together. We worked hard to support ourselves, and our dream was to grow old together, side-by-side. My hope now is that I will be treated no differently than any surviving spouse who has faced this same devastating loss.”

So gays who live in states that ban gay marriage? No spousal benefits from the federal government. Nazi war criminals? The check is in the mail.

[photo via Washington Blade courtesy Lambda]