The 10th U.S. Circuit Court of Appeals has affirmed a decision of a District Court that struck down Utah's law banning same sex marriages. Undoubtedly, the state of Utah will ask the Supreme Court to hear the case. In the meantime, they'll ask that the decision be stayed. If the Supreme Court refuses to grant a stay, it's a pretty good sign that the Court will affirm and all states will have to allow same sex marriages.
Where does this leave Social Security? The agency has a policy on application of decisions of the Courts of Appeals. However, that policy only concerns interpretations of the Social Security Act. This is the Constitution being interpreted, not the Social Security Act. I don't think that Social Security has any policy on this. In any case, it's clear that this will be the Department of Justice's call, not Social Security's. At a minimum, if the decision of the 10th Circuit decision isn't stayed, this will have to be applied throughout the 10th Circuit area, which is Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. Would the Department of Justice decide to apply this beyond the 10th Circuit since the Administration would be in agreement and there is no conflicting decision of a Court of Appeals? What if we have three or four other Courts of Appeals coming down with similar decisions over the next three months? Would the Department of Justice then say to apply this nationally?
Love it when you link to the reg I worked so hard on 25 plus years ago. And you are correct, the acquiescence regs were not designed with this situation in mind. Justice will make the policy decision here; it will clearly apply in the 10th circuit and with a couple more jumping in, it'll go nationwide.
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