DOJ: DOMA immaterial in granting benefits to same-sex couple’s child

Issue July/August 2008 By Andrea Barter Esq.

The federal government won’t recognize same-sex couples, but it can pay benefits to their children. According to a U.S. Department of Justice opinion released June 9, federal law does not prohibit the Social Security Administration from paying insurance benefits to the nonbiological child of a partner in a Vermont civil union. The decision is notable because the Defense of Marriage Act bars the government from extending federal benefits to same-sex couples even though they enjoy the status of spouses, domestic partners or civil union partners under state law.

In the case under consideration, Karen and Monique had a Vermont civil union in 2002, and Monique gave birth to a son, Elijah, in 2003. Under Vermont’s civil union law, Karen is one of Elijah’s parents and was listed on the birth certificate as "second parent," with no need to undertake a second-parent adoption. That year, Karen also began receiving disability benefits under Social Security, and she filed a claim for benefits on behalf of her son. (Children of adults who are receiving Social Security disability payments are eligible for benefits in their own right.)

The SSA expressed doubt about whether it could provide benefits to Elijah, on the view that federal law would not recognize the Vermont civil union status that was the basis of Karen’s parental status. Thomas Crawley, the acting general counsel of the SSA, turned to the Justice Department for legal advice as to whether the Defense of Marriage Act would bar the payment of Social Security child insurance benefits to the son of the Vermont couple.

Steven Engel, deputy assistant attorney general for the DOJ’s Office of Legal Counsel, wrote the opinion, which states that the relationship of the two women to each other is irrelevant for the purposes of the Social Security Act.

The OLC opinion draws a distinction between benefits for spouses and benefits for children. According to the decision, the eligibility of a child for Social Security benefits isn’t conditioned on the existence of a marriage or on the federal rights of a spouse. The law only requires the existence of a parent-child relationship, which doesn’t have to be a biological one. "Rather, eligibility turns upon the state’s recognition of a parent-child relationship, and specifically, the right to inherit as a child under state law," the opinion states.

Under Vermont law, if a child is born to a woman who is in a civil union, the intestate succession law will give her child a right to inherit from her partner. Thus, Engel concluded, Elijah is Karen’s child for purposes of the Social Security Act, and is entitled to insurance benefits under the act on account of his mother’s disability.

Engel found that "by its terms," DOMA "does not apply to Elijah’s eligibility" for the child insurance benefits under Social Security, because Elijah’s eligibility depends on his status as Karen’s son under Vermont’s Intestate Succession Statute, and not on the relationship between Karen and Monique as such. "The fact that Elijah’s right of inheritance ultimately derives from Vermont’s recognition of a same-sex civil union is simply immaterial under DOMA," Engel concluded.

While some conservatives may fear the opinion erodes DOMA or legitimizes gay unions, many practitioners believe the opinion is a plain reading of DOMA that still allows for the recognition of nontraditional families.

Mark Mason, a past president of the MBA and chair of its Same-Sex Marriage Task Force, doesn’t believe the opinion undermines DOMA. "However, the opinion quite purposefully does not permit the shadow of DOMA to get in its way and demonstrates certain limitations in what some might perceive as the overarching purpose behind DOMA." Mason finds the opinion significant insofar as it may provide insight into how federal law might apply to the families of same-sex couples outside of
DOMA’s restrictions.

Cambridge attorney Joyce Kauffman, an expert on nontraditional family law in Massachusetts, believes "The opinion is consistent with Woodward v. Commissioner of SSA, in that the SSA had to accept legal parentage, as defined by the state.  However, it is interesting that the federal government is faced with the reality that they have to recognize parentage even when that parentage flows from the same-sex marriage or civil union. In that sense, the opinion, while not really eroding DOMA, could certainly be said to be an irony."

"Despite the misguided intent of DOMA, the DOJ seems to have issued a reasonable and well-considered opinion. The plain language of DOMA requires this result," said Kevin G. Powers, of Rodgers, Powers & Schwartz, and chair of the MBA’s Individual Rights & Responsibilities Section. "I believe even a conservative judge who is a strict constructionist would have to agree with the opinion."

Attorney Michael Donnelly, a co-chair of the new Juvenile and Child Welfare Section, is particularly pleased that the opinion didn’t get bogged down in a battle over same-sex marriage and "made an intelligent distinction, cutting a commonsense path to say these are children who need benefits and we wouldn’t deny them if their parents were married and of the opposite sex."

While Powers appreciates that the opinion provides some protections for the children of civil unions or gay marriages, he cautions that people should still be concerned about their children’s rights if they move to a state that doesn’t recognize civil unions or same-sex marriage. "That’s the inequity of DOMA," he said. "People now have to worry about where they can move."

Kauffman similarly cautions that, while the DOJ opinion acknowledges nontraditional families and relationships, individuals need to establish a legal relationship with their children, recognized by the state, if they don’t already have one. This case would have had a different outcome if the Vermont nonbiological parent did not have a legally recognized relationship with the child.

As a result of the OLC opinion, "The Social Security Administration will recognize nontraditional families, from whatever source the relationship arises from, whether civil union, marriage or adoption," said Kauffman.

"If the state law where the people live sanctions it as a legal relationship, the Social Security Administration will respect it, and that’s a wonderful thing. It protects the children and ensures they are taken care of. Respect for parent-child relationships will only lead to positives for children," concluded Kauffman.