         Whether the Defense of Marriage Act Precludes the
         Nonbiological Child of a Member of a Vermont Civil
            Union From Qualifying for Child’s Insurance
               Benefits Under the Social Security Act
The Defense of Marriage Act would not prevent the non-biological child of a partner in a Vermont civil
  union from receiving child’s insurance benefits under the Social Security Act.

                                                                                  October 16, 2007

            MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
                    SOCIAL SECURITY ADMINISTRATION

    The Social Security Act defines a “child” for the purpose of determining eligi-
bility for child’s insurance benefits (“CIB”) by reference to the inheritance law in
the relevant state. 42 U.S.C. § 416(h)(2) (2000). The law provides that a child shall
receive CIB on account of a disabled parent when the child would inherit as a son
or daughter if the parent were to die intestate. Id. Vermont law provides that the
parties to a same-sex civil union enjoy the same benefits of parentage laws that
would apply to a married couple, and so the natural child of one member of the
union may be deemed to be the child of the other member for purposes of intestacy
under Vermont law. Vt. Stat. Ann. tit. 15, § 1204; see also Miller-Jenkins v.
Miller-Jenkins, 912 A.2d 951, 970 (Vt. 2006).
    You have asked whether the Defense of Marriage Act (“DOMA”), Pub. L. No.
104-199, 110 Stat. 2419 (1996), would prevent the Commissioner of Social
Security (the “Commissioner”) from providing the non-biological child of one
member of a Vermont civil union with social security benefits on account of that
individual’s relationship with the child. 1 We conclude that it would not. Although
DOMA limits the definition of “marriage” and “spouse” for purposes of federal
law, the Social Security Act does not condition eligibility for CIB on the existence
of a marriage or on the federal rights of a spouse in the circumstances of this case;
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. A child’s inher-
itance rights under state law may be independent of the existence of a marriage or
spousal relationship, and that is indeed the case in Vermont. Accordingly, we
conclude that nothing in DOMA would prevent the non-biological child of a


   1
     See Letter for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, from Thomas W. Crawley, Acting General Counsel, Social Security Administration (June 6,
2007) (“SSA Letter”). We are informed that the Commissioner has agreed to be bound by the opinion
of this Office. See E-mail for John P. Elwood, Deputy Assistant Attorney General, Office of Legal
Counsel, from Thomas W. Crawley, Acting General Counsel, Social Security Administration (June 29,
2007, 12:16 EST).




                                                243
                 Opinions of the Office of Legal Counsel in Volume 31


partner in a Vermont civil union from receiving CIB under the Social Security
Act.

                                          I.

    Two women, Karen and Monique, entered into a civil union under Vermont
law in 2002, and Monique gave birth to a son, Elijah, in 2003. Karen did not
formally adopt Elijah, but she appears on the birth certificate as his “2nd parent”
and on other documents as his “civil union parent.” See SSA Letter at 1. In 2005,
the Commissioner found Karen to be eligible for disability benefits, and she then
filed an application for CIB on behalf of Elijah. Id. At the time of the application,
Karen was domiciled in Vermont. Id. at 2. In order to determine whether federal
law would allow Elijah to qualify as Karen’s “child” on account of her civil union
with Elijah’s natural mother, we first consider whether Elijah would qualify as
Karen’s “child” under 42 U.S.C. § 416(e)(1). We then consider whether the
interpretive principle mandated by DOMA affects Elijah’s status under the Social
Security Act.
    The Social Security Act provides that an applicant may be eligible for CIB if he
is the dependent “child” of an individual entitled to disability benefits. 42 U.S.C.
§ 402(d) (2000). The Act defines “child” to include “the child or legally adopted
child of an individual,” as well as stepchildren and, in some cases, grandchildren.
Id. § 416(e)(1). In many, if not most, cases the existence of a parent-child relation-
ship must be established under the provisions of section 416(h) that further define
the relationship for CIB purposes.
    With respect to Elijah’s relationship to Karen, the Act directs the Commission-
er to look to how the relevant state would define the parent-child relationship for
purposes of inheritance law. Specifically, the Act provides:

       [T]he Commissioner of Social Security shall apply such law as
       would be applied in determining the devolution of intestate personal
       property by the courts of the State in which such insured individual
       is domiciled at the time such applicant files application . . . . Appli-
       cants who according to such law would have the same status relative
       to taking intestate personal property as a child . . . shall be deemed
       such.

42 U.S.C. § 416(h)(2)(A). The Commissioner has issued regulations tracking this
statutory provision, and they provide, in relevant part, that a “natural child” shall
be defined based on “the law on inheritance rights that the State courts would use
to decide whether [the individual] could inherit a child’s share of the insured’s
personal property if the insured were to die without leaving a will.” 20 C.F.R.
§ 404.355(b)(1) (2007). Where, as here, the insured is living, the Commissioner




                                         244
                  Nonbiological Child of a Member of a Vermont Civil Union


“look[s] to the laws of the State where the insured has his or her permanent
home.” Id.
    Because Karen was domiciled in Vermont at the time of Elijah’s application,
we look to Vermont law for guidance. The Vermont statute addressing intestate
succession provides that the “estate of a decedent, not devised nor bequeathed and
not otherwise appropriated and distributed in pursuance of law, shall descend” in
the first instance “to the children of such decedent or the legal representatives of
deceased children,” but the statute does not otherwise define “children.” Vt. Stat.
Ann. tit. 14, § 551(1); see also Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951,
969 (Vt. 2006) (recognizing that under Vermont law, “the term ‘parent’ is specific
to the context of the family involved” and has been principally defined through
judicial precedent). The civil union statute provides broadly that parties to a civil
union shall have “all the same benefits, protections and responsibilities under
law . . . as are granted to spouses in a marriage,” Vt. Stat. Ann. tit. 15, § 1204(a),
including “laws relating to . . . intestate succession,” id. § 1204(e)(1). The statute
further provides that parties to a civil union shall enjoy the same rights, “with
respect to a child of whom either becomes the natural parent during the term of the
civil union,” as “those of a married couple.” Id. § 1204(f).
    The Vermont Supreme Court recently relied upon these provisions to hold that
a child, like Elijah, who is born to one partner of a civil union during the existence
of the civil union, should be deemed the child of the other partner under Vermont
law for purposes of determining custodial rights following the dissolution of the
civil union. Miller-Jenkins, 912 A.2d at 969–70. 2 The court reasoned that in the
context of marriage, courts have regularly found that a child born by artificial
insemination should be deemed to be the child of the husband, even if there is no
biological connection. Such holdings followed the intent of the spouses in the
marriage, ensured that the child would have two parents, and avoided the need for
requiring adoption proceedings in every case. Id. Because section 1204 requires
equal treatment of partners in civil unions, the court held that the same result
should apply to the non-biological partner in a civil union. Id. at 970–71.
    Although Miller-Jenkins recognized the parent-child relationship in the context
of custodial rights, we see no reason why Vermont courts would reach a different
result when considering who would constitute a child for purposes of inheritance.
The Vermont civil union statute makes clear that a partner in a civil union shall
enjoy not merely the “rights” that a married person would enjoy, but more broadly
all “benefits, protections and responsibilities under law.” Vt. Stat. Ann. tit. 15,


   2
     In addition, the Vermont Supreme Court identified certain factors to support its conclusion,
including the following: the parties to the civil union expected and intended for the non-biological
parent to be the child’s parent, the non-biological partner participated in the artificial insemination
decision, and no other individual had a claim to be the child’s parent. Id. at 970. In Elijah’s case, it is
apparent from the birth certificate and other documents that the partners to the civil union intended for
Karen to be his parent. See SSA Letter at 1.




                                                   245
                         Opinions of the Office of Legal Counsel in Volume 31


§ 1204(a). With respect to civil union partners, these “benefits, protections and
responsibilities” specifically include both bequeathing and inheriting property,
should one partner die intestate. Id. § 1204(e)(1). Insofar as Vermont law further
seeks to place partners in a civil union on equal footing with married couples with
respect to children, see id. § 1204(f), we believe that Vermont courts similarly
would conclude that the property of a partner in a civil union who dies intestate
would descend on the same terms as it would for a married person, and in
particular, would go to those who would be recognized as his or her children under
Vermont law. Accordingly, as applied here, we conclude that Vermont law would
recognize Elijah as Karen’s child for purposes of his right to inherit, should she die
intestate.

                                                       II.

   The question remains whether DOMA would prevent the Commissioner from
otherwise recognizing Elijah as a beneficiary under the Social Security Act.
Congress enacted DOMA in response to the decision of the Hawaii Supreme Court
in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), which held that the equal protection
guarantee of that state’s constitution required the recognition of same-sex mar-
riage. See H.R. Rep. No. 104-664, at 3–4 (1996) (“House Report”). DOMA seeks
to ensure that neither the federal government nor individual states are forced to
give legal effect to same-sex marriages, either on account of one state’s recogniz-
ing such a marriage or by the judicial interpretation of existing law. See id. at 2. At
the same time, DOMA respects states’ traditional rights in the arena of domestic
relations, allowing them to establish their own public policies with respect to
same-sex unions. See id. 3
   DOMA contains two operative provisions. The first provision, codified at 28
U.S.C. § 1738C (2000), provides that a state need not give full faith and credit to
“a relationship between persons of the same sex that is treated as a marriage”
under the laws of another state. That provision, which provides that each state may
adopt its own public policy with respect to same-sex marriage, is not implicated
here. It is the second provision of DOMA, codified at 1 U.S.C. § 7, that arguably
might bear upon Elijah’s entitlement to CIB under the Social Security Act. This
section, 1 U.S.C. § 7, was added to the Dictionary Act, 1 U.S.C. §§ 1 et seq., to



    3
        The House Report described DOMA as having “two primary purposes”:
            The first is to defend the institution of traditional heterosexual marriage. The second is
            to protect the right of the States to formulate their own public policy regarding the le-
            gal recognition of same-sex unions, free from any federal constitutional implications
            that might attend the recognition by one State of the right for homosexual couples to
            acquire marriage licenses.
Id. at 2.




                                                      246
               Nonbiological Child of a Member of a Vermont Civil Union


define “marriage” and “spouse” for purposes of federal statutes and regulations as
follows:

          In determining the meaning of any Act of Congress, or of any rul-
       ing, regulation, or interpretation of the various administrative bu-
       reaus and agencies of the United States, the word “marriage” means
       only a legal union between one man and one woman as husband and
       wife, and the word “spouse” refers only to a person of the opposite
       sex who is a husband or a wife.

1 U.S.C. § 7. This section reflects a federal policy against interpreting any federal
law, regulation, or other administrative act so as to afford legal consequence to
same-sex marriages. The provision defines “marriage” and “spouse” for those
purposes so as to exclude reading those terms to extend to same-sex relationships.
    By its terms, 1 U.S.C. § 7 does not apply to Elijah’s eligibility for CIB under
the Social Security Act. As discussed, Elijah’s eligibility arises out of his status as
Karen’s “child” under section 416, and the law provides that he “shall be deemed
such” simply because he “would have the same status relative to taking intestate
personal property as a child” under Vermont law. 42 U.S.C. § 416(h)(2)(A). That
analysis does not require any interpretation of the words “marriage” or “spouse”
under the Social Security Act or any other provision of federal law. Nor does the
analysis even require interpreting those terms under Vermont law in a way that
might have consequence for the administration of federal benefits. An individual
may qualify as a “child” under section 416 wholly apart from the existence of any
marriage at all, as would be the case of a natural-born child of an unmarried
couple, or, as is the case here, where Vermont recognizes a parent-child relation-
ship outside the context of marriage. 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. Accordingly, DOMA would not preclude Elijah from
qualifying for CIB as a child of Karen under the Social Security Act.

                                                STEVEN A. ENGEL
                                          Deputy Assistant Attorney General
                                              Office of Legal Counsel




                                         247
