Gerald Passaro and Thomas Buckholz
Gerald Passaro and Thomas Buckholz ()

A Connecticut resident who previously challenged the Defense of Marriage Act has filed suit against a major U.S. company in an attempt to collect pension benefits he claims he is owed following his partner’s death.

But Gerald Passaro is hardly the only person involved in legal proceedings stemming from the U.S. Supreme Court’s decision last year to strike down key portions of the law that denied a wide range of benefits to same-sex couples. Attorneys in practice areas ranging from immigration to tax law say they are working with clients on DOMA-related matters.

Meghan Freed, a Hartford lawyer who co-chairs the Connecticut Bar Association’s LGBT Section, said some cases involve requests to the federal government to provide Social Security benefits to individuals following the deaths of their same-sex spouses.

“Some of these cases have been in limbo for a year,” she said.

Freed and other attorneys said the key issue is whether an individual whose same-sex spouse died before the June 2013 decision by the U.S. Supreme Court can retroactively apply for financial and other benefits they were not entitled to when the 1996 law was in force. And so attorneys with LGBT practices are tracking the lawsuit filed by Milford’s Passaro against his late husband’s employer, the Pittsburgh-based Bayer Corp. “I think there will certainly be more lawsuits like this,” Freed said, until the courts make a more broad rule that resolves the issue.

Even though DOMA is no longer on the books, Passaro — referred to as Jerry in legal documents — says Bayer won’t provide him with spousal survivor benefits that would likely total about $500 a month. Specifically, the lawsuit says Bayer is violating provisions of the federal Employee Retirement Income Security Act, or ERISA.

The lawsuit was filed by Boston-based Gay & Lesbian Advocates & Defenders. GLAD says that Passaro’s husband, Thomas Buckholz, worked as a chemist for the company in Connecticut more than 20 years before his death.

The lawsuit claims that Bayer’s pension plan is “legally obligated to extend—and has no discretion to deny—a [qualified preretirement survivor annuity] to Jerry because Jerry is a surviving spouse within the meaning of governing federal law and, as a surviving spouse, is entitled to a QPSA.”

After 13 years together, Buckholz and Passaro were married in front of a Christmas tree in their home in November 2008, shortly after Connecticut legalized same-sex marriages. Buckholz was already seriously ill with lymphoma, and he died two months later, just short of his 48th birthday. Passaro, a former hair stylist, is disabled and receives a monthly Social Security check.

Before Buckholz died, he believed he had received assurances from Bayer that his partner would be the beneficiary of his pension, according to the lawsuit. But after his death in 2009, Passaro requested the benefits and was turned down by Bayer, its benefits provider (Vanguard), and by Bayer’s ERISA Review Committee.

According to the lawsuit, Bayer cited DOMA in its refusal.

In 2010, Passaro became one of 13 plaintiffs in a federal lawsuit filed in Connecticut that challenged DOMA. In 2012, U.S. District Judge Vanessa Bryant struck down a portion of the law that barred same-sex couples from receiving federal benefits, and the case was combined with the New York challenge United States v. Windsor that ultimately went to the Supreme Court.

Following the Supreme Court decision that gutted key provisions of DOMA, Passaro again asked Bayer for the spousal benefits. The pharmaceutical company again said no. Christopher Loder, a Bayer spokesman, said the legal issues raised in the lawsuit are complicated.

“We are aware of the complaint filed in federal court and will respond to the court accordingly,” Loder said. “Our inclusive benefits program contains same-sex marriage benefits. We are also working diligently to navigate through the complex regulatory landscape stemming from the Windsor decision in order to fully explore our benefit obligations to married same-sex employees.”

Gary Buseck, a lawyer who is GLAD’s interim executive director, said the issue is not as complicated as Bayer is making it out to be. “Despite the fact that DOMA has been found unconstitutional, Bayer continues to deny benefits to [Passaro] even though its pension plan provides benefits to all [other] surviving spouses and even though federal law mandates pension benefits for surviving spouses under plans like Bayer’s,” said Buseck. “Bayer has turned a deaf ear to its legal and moral obligation to the widower of a dedicated employee, who is in need of this basic support that his husband earned.”

Among those watching to see how that case pans out is Jessica Grossarth, a bankruptcy lawyer at Pullman & Comley and member of the LGBT Section of the CBA. She’s already noticed the impact in bankruptcy cases. While some parties are arguing that the Windsor decision should be applied retroactively—others are vigorously opposing that idea.

For example, bankruptcy lawyers say some individuals seeking bankruptcy protection might cite financial hardships caused by them losing access to the earnings of a spouse who died before the Windsor decision. But because the federal law did not recognize those marriages, those individuals might have to rely on other legal arguments when filing for bankruptcy.

Creditors in bankruptcy cases, meanwhile, may try to collect payments from surviving partners even if their spouse died before their marriage was recognized under federal law.

Freed recently spoke with a potential client in Hartford who brought to her attention the refusal of Social Security benefits for same-sex spouses. There is a one-time benefit for surviving spouses under Social Security, but the rules require that the survivor apply for it within two years of the death of the spouse. Some same-sex partners say they didn’t file within the two-year window because they had no legal claim when DOMA was in force. Now that the law is off the books, they want to file for the benefit.

As many as 10 such claims have been made to the Social Security office in Hartford alone, Freed said, but decisions have been placed on hold until the Department of Justice issues an opinion.

“I think what we’re going to see is the trickle-down impact,” Freed said, referring to the interaction between federal law on benefits and other federal or state laws. The Passaro lawsuit is not likely to be the only lawsuit of its kind, she said.

Alex Meyerovich, an immigration lawyer in Bridgeport, said as the laws regarding same-sex marriage have changed, “the legal landscape has gyrated with it.”

He said since the Windsor decision, the Internal Revenue Service has stated that couples whose same-sex marriages were not legally recognized under DOMA cannot resubmit tax returns for years that the law was in effect. If they were permitted to switch filing status to married filing jointly, the couples could reduce their tax burden.

However, other federal agencies, including the Department of Homeland Security and Immigration and Customs Enforcement, have been more flexible, Meyerovich said. Previously, immigration authorities did not recognize same-sex marriages and would thus bar spouses of U.S. citizens from entering the country or applying for green cards. However, now that DOMA has been struck down, officials have been willing to reconsider those previously denied applications.

“There is going to be a lot of litigation in the future dealing with this retroactive question in DOMA,” he said.•