Dustin Kight

Sometimes the Law Works in Mysterious Ways

Filed By Dustin Kight | June 21, 2008 3:00 PM | comments

Filed in: Living, Marriage Equality, Politics
Tags: Department of Justice, disability benefits, LGBT parent, New Jersey, Social Security, Steven Engel, Vermont

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.

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I wonder if something similar might happen when DOMA is tested against the Constitution's full faith and credit clause or other federal and state codes.

This social security administration opinion is fabulous! Here's something even better about it -- although this parent-child relationship was created by the couple's civil union, in states that recognize a parent-child relationship under the state's Uniform Parentage Act (or other parentage law), regardless of the relationship between the parents, there should be the same result! Both Washington state and California have court decisions recognizing AS A PARENT a non-biological mom. An American Bar Association committee recommends that if two people agree that one will be inseminated by donor semen and both intend to be the parents of the child that results, then both ARE the parents of the child that results. If laws like that get enacted, then those children will get social security benefits as well --- and everything else that goes with a parent-child relationship under federal law -- let's hope!

I was about to write pretty much the same thing as Nancy just did, but I'll go ahead and do it anyway...

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

What's important to me there is that the relationship that is seen as important is the relationship between Karen and Elijah, not the one between Karen and Monique. Which makes sense, since that benefit was made to help the kid out.

So when the religious right passes their haterade around over this decision (Don emailed me about this and mentioned that they've already started), let's just ask: Why do y'all hate children?

Ah, the law. It has a tendency to tilt toward justice since it's administered by humans.

Robert Ganshorn Robert Ganshorn | June 22, 2008 1:08 AM

Why do they hate children? Pretty simple, they hate who is raising them. They hate women having the right to control their bodies.

This is a wonderful beginning!

Don Sherfick Don Sherfick | June 22, 2008 7:17 AM

Dustin, as I told Alex, I saw something in an item concerning the DOJ opinion that some spokesperson for an anti-gay organization had denounced it, but I haven't been able to re-find the item. Have you or other readers seen that criicism?

I found this, Don, that has a little bit in it from the Family Research Council.

On a related note, Eugene Volokh interprets the decision like this:

I'm no expert on Social Security benefits, but the result seems right as a textual matter under both DOMA, which forbids federal recognition of same-sex marriages, and the Social Security Act, which defines an eligible child as one who has the state-law right to inherit from a parent regardless of the marital status of the parent. A contrary result would have put the federal government in the position of saying that not only is the parents' civil union created by state law unrecognized, but that the legal parent-child relationship created by state law is unrecognized. While it appears the legal parent-child relationship in the case arose from the parents' civil union, rather than from an adoption, the continued recognition of that parent-child relationship under Vermont law, including the inheritance right, is not dependent on the continued existence of the civil union.

Oh, I forgot to add that I think that Volokh's explanation is a good summary, and it hosw, pretty much, that the gay marriage movement is destroying traditional marriage, in that it's separating, legally, the relationships between the parent and the child and the two parents. It's forcing people to recognize that not all families are assembly-line copies of a generic standard.

So, like, score one for the Radical Homosexual Agenda.