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In Social Security Ruling, A Chink in DOMA's Armor

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BY ARTHUR S. LEONARD | The Justice Department released a memorandum stating that the federal Defense of Marriage Act (DOMA) presents no obstacle to paying Social Security Disability benefits to a child based on the disabling condition of the child's non-biological mother, who is in a Vermont civil union with the biological mother.

The memorandum could affect a variety of situations in which states accord some type of legal recognition to gay and lesbian couples.

The memorandum, from Justice's Office of Legal Counsel (OLC) to the Social Security Administration (SSA), was dated October 16, 2007, but was made public on June 9.

DOMA provides that the federal government will not recognize any legal status for same-sex couples, even if they enjoy the status of spouses, domestic partners, or civil union partners under the state law where they reside.

Karen and Monique, identified in the memorandum only be their first names, entered into 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 is so named on his birth certificate - and need not undertake a second-parent adoption.

When Karen became disabled, she applied for Social Security disability benefits for herself and for her child. The Social Security Administration expressed doubt about whether it could provide benefits to Elijah, based on the view that federal law would not recognize the Vermont civil union status that forms the basis of Karen's parental status. SSA turned to the Justice Department for legal advice.

Deputy Assistant Attorney General Steven A. Engel from the OLC signed the memorandum, which states that the relationship of the two women to each other is irrelevant for purposes of the Social Security Act. The only germane question is whether Karen and Elijah have a parent-child relationship under state law; and that was determined by looking at whether Elijah would have a right to inherit from Karen if she were to die without leaving a will. The Social Security Act explicitly states that state law governing "intestate succession" determines whether there is in fact a parent-child relationship.

Under Vermont law, if a child is born to a woman who is in a civil union, the child has the right to inherit from her partner in the event she dies intestate. Engel concluded that under the Social Security Act Elijah is Karen's child and is entitled to child's insurance benefits because of her disability.

Engel specifically noted the Vermont Supreme Court's decision in a recent custody dispute between two women who were former civil union partners. That court determined that the birth mother's partner was entitled to parental visitation rights after the women ended their union and Engel found that an authoritative statement of Vermont law on Karen's parental standing.

Engel found that "by its terms," DOMA "does not apply because Elijah's eligibility is based on the Vermont 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.

The ruling is significant beyond both the parties and Vermont, since the reasoning would clearly apply to couples whose marriages are recognized by their home states as well as to those in civil unions and domestic partnerships in states where intestate succession rights are attached to those relationships.

Updated 5:17 pm, July 20, 2018
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