Just when you thought DOMA made it impossible for same-sex couples to enjoy any of the rights, privileges and responsibilities of marriage, the Department of Justice releases a legal opinion stating that nothing in the infamous 1996 federal law bars the Social Security Administration for granting benefits to the children of disabled LGBT parents, where the parent-child relationship has been established by civil union, etc.
Sound complicated? It kind of is. The 5-page opinion, written by Steven A. Engel, Deputy Assistant Attorney General, is chock full of legal nuance and careful approximation. I'm no legal scholar, but I think I've got the gist of it (after the jump, that is...).
This whole thing got started when Karen and Monique, a same-sex couple in Vermont who entered into a civil union in 2002, applied for the benefits a dependent child receives when one of the child's parents qualifies for disability through Social Security. The benefits were for their son, Elijah, whom Monique gave birth to in 2003, after she and Karen had entered into their civil union. In Vermont, the civil union gave Karen "2nd parent" status, despite the lack of biological connection, in much the same way that nonbiological fathers are now given parent status when their wives give birth having conceived with donor sperm.
The Social Security Commissioner asked the Department of Justice to decide whether DOMA prohibited them from assigning appropriate parent status to Karen, the one who qualified for benefits, thus denying the couple's claim to benefits for Elijah, as well.
Engel at the DOJ wrote his opinion way back in October 2007 -- it was released on June 9, 2008 -- and this is what he said:
Before we go to DOMA, we must go to the Social Security Act.
With respect to Elijah's relationship to Karen, the [Social Security] Act directs the Commissioner to look to how the relevant State would define the parent-child relationship for purposes of inheritance law.
Onward to Vermont:
The [Vermont] 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 marriage,' including 'laws relating to...intestate succession.' 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.'
It ain't Shakespeare, but it almost makes me chuckle and weep all at the same time.
But what about DOMA??
In essence, DOMA doesn't apply because the Social Security Act applies first, and the Act clearly states that a state's approach to legal parentage is more the controlling factor here. But in terms of highlighting just how bountiful family -- not just marriage -- law can be for establishing legal equality for the LGBT community, you need only read ahead. (This, in fact, might be Shakespeare):
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 relationship 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 [benefits] as a child of Karen under the Social Security Act.
Though the opinion, which the Social Security Commissioner considers binding, specifically addresses Vermont civil unions, the reasoning stands that parents and children in other states with similar relationship recognition laws and provisions that confer parent status can successfully access benefits, as well.
This is not to say that family law as regards LGBT parents is moving quickly in a progressive direction around the country, but it is curious to note how the law seems to flex when the well-being of children is concerned. What this says to me is that while part of our immediate hurdle is obviously legal, part of it is cultural as well. The two can't be separated, no matter how hard constitutional law professors try (or am I the only one who had that bad experience in college...?)
The fewer barriers politicians and legal authorities have to seeing LGBT-headed families as unworthy, unsavory and unreal, the more likely they will be to write and interpret laws that recognize and respect our differences and support our family structures -- and the people within them -- than they are today.
Now I definitely dorked out over this DOJ opinion -- what can I say, well-written legalese gets to me sometimes -- but I think it's worth pausing here and reflecting on what the idea of family as a support system worth supporting can and does really mean for our society. In 2008 in the last year of the disastrous Bush Administration we have a Department of Justice official writing eloquently about the need to respect Vermont's approach to defining parents outside of "traditional" marriage. That smacks of significance to me.