Why No Action On Same Sex Marriages?

     The Supreme Court ruled that the Defense of Marriage Act (DOMA), which prevented Social Security from recognizing same sex marriages, was unconstitutional on June 26, 2013. That was more than a month ago. While Social Security has sent out a press release saying it is "taking" claims for benefits based upon same sex marriages, it has instructed its staff to do NOTHING with these claims. How much longer will it be before Social Security starts to act on these claims? 

     The dodge of saying "we're taking claims" can't work much longer. Eventually, the main stream media will figure out that simply "taking claims" is meaningless. It's what you do with the claims that counts. Holding them for months and months is little different from denying them. The main stream media will be asking questions in the near future. The agency and the administration can't just think about this subject for the next six months or so.

SSA Not Yet Implementing DOMA Decision

     Social Security has issued new instructions on dealing with same sex marriage cases. Social Security's Administrative Law Judges are now instructed to cancel any scheduled hearing dealing with this issue and to not make a decision in any case that has already been heard. I don't know how many of these cases there may be but I'd bet the vast majority of them are couples who still live in the state in which they were married. I know there are issues with cases where the parties to the marriage have moved to a state that refuses to recognize same sex marriage but there is no issue when the parties live in the state where they were married. How long should it take to write instructions for these cases?

Some Agencies Were Prepared For Supreme Court Decision On DOMA

     I wrote last week that Social Security seemed unprepared for the decision of the Supreme Court holding the Defense of Marriage Act (DOMA) unconstitutional. Some agencies were prepared for this decision. See the memo from the Office of Personnel Management (OPM) issued just a day after Social Security issued staff instructions to hold all claims filed by those in same sex marriages.

Education Is So Important

    I think this chart from a recent Urban Institute report is interesting. (DI = Disability Insurance):

SSA Unprepared For SCOTUS Decision On DOMA

     Social Security has sent out its first staff instruction on what to do with same sex marriages in the wake of the Supreme Court decision that the Defense of Marriage Act (DOMA) is unconstitutional. The instruction is to "Take and hold all claims by individuals who are filing for benefits that are dependent upon the existence of a same-sex marriage." This is not just for those who have moved from the state in which they were married. This is for all cases. The instruction to 800 number operators is to "Please advise callers that we are working with the Department of Justice to review the decision and how it impacts our programs -- including benefits administered by this agency – to ensure that we implement the decision swiftly and smoothly."
     The Supreme Court decision that DOMA is unconstitutional didn't come as a surprise to anyone who had been paying attention. I think that Social Security could have been better prepared. How long will it take them -- and the Department of Justice -- to write staff instructions?

What Happens If DOMA Is Found Unconstitutional?

    The Supreme Court is likely to hand down its opinion on the constitutionality of the Defense of Marriage Act (DOMA) next week. DOMA forbids the federal government from recognizing same sex marriages even though some states recognize them. Many observers expect that DOMA will be found unconstitutional. This would not take care of the same sex marriage issue for Social Security, however.  The Social Security Act says that the determination of whether a person is married is based upon the law of the state in which he or she is domiciled, or was domiciled as of the date of the person's death. 

     What if two men or two women marry in New York or some other state that recognizes same sex marriage and one party to the marriage later starts to draw Social Security benefits based upon that marriage but the couple then moves to North Carolina, one of the many states that refuse to recognize same sex marriages within their borders, even if the marriage took place in another state? Does that mean that the spouse who was eligible for Social Security benefits while living in New York is suddenly ineligible because he or she has moved to North Carolina? That would be a weird result and hard for Social Security to implement. There is certainly an argument that North Carolina has a constitutional duty to give "full faith and credit" to the marriage that took place in New York but that issue isn't before the Supreme Court at the moment and won't be for at least another year. So what can Social Security do now? Let's look at the Social Security Act itself. In addition to providing that in determining marital status Social Security must look to state law in the state in which the claimant is living, 42 U.S.C. §416(h)(1)(B) provides that:

In any case where under [state law a person is not married] but it is established to the satisfaction of the Commissioner of Social Security that such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, then ... such purported marriage shall be deemed to be a valid marriage.

     Doesn't that apply here? The parties to this same sex marriage went through their marriage ceremony in New York in good faith. It was no "purported" marriage to them or to the state of New York. The only legal impediment is one that arose after the marriage when the parties moved to North Carolina. Shouldn't the marriage be deemed to be a valid marriage even after the couple move to North Carolina? That's no slim reed. It's a strong argument based upon the plain language of the statute, one that I'd be happy to litigate. This interpretation avoids the ridiculous outcome of a person being eligible for Social Security benefits in one state but ineligible if he or she moves to another state. This doesn't force same sex marriage on states that don't want it. They're free to ignore them. This just allows for a uniform application of the Social Security Act across the country.
    The problem with the "deemed marriage" provision is that it doesn't help the Obama Administration deal with the issue in other settings, such as veteran's benefits (update: the concept of deemed marriage does exist to some extent in veterans benefits law, 38 C.F.R. §3.52) and federal employee benefits. It's possible that the Obama Administration will decide that if DOMA is unconstitutional that state laws that refuse to recognize same sex marriages contracted in other states are unconstitutional and refuse to apply them. The President felt that he was obliged to apply DOMA (but not defend it in court) even though he believed it unconstitutional but DOMA was federal law. The President swore an oath to uphold federal law. He never swore an oath to abide by state laws that he regards as unconstitutional.
     We'll see what the Supreme Court does and what the White House does thereafter but my bet is that if DOMA is found unconstitutional, one way or another Social Security will start recognizing same sex marriages that were valid at the time the parties entered into them regardless of where the parties move thereafter.

DOMA Being Declared Unconstitutional May Only Be The Beginning

      From Liz Goodwin writing at Yahoo News:

If, as many legal experts predict, the Defense of Marriage Act is struck down by the Supreme Court, advocates behind the decadeslong movement for gay rights will have won a major victory. But the decision could also create a dense legal maze for gay and lesbian married couples, one that would surely lead to more lawsuits that could make their way back to the Supreme Court. ...

If DOMA is struck down, then same-sex couples residing in states that allow gay marriage will suddenly be included in the more than 1,100 federal laws that give benefits to married couples. ...

But what about a gay couple that gets married in New York and then moves back to North Carolina, or any other of the 38 states that have explicitly banned gay marriage?

At first glance, it appears they would have no access to these rights, and that their marriage would not be recognized either by their state or the federal government ...

  [A law professor] predicts same-sex couples would sue the government, arguing that this policy violates their constitutional right to travel. ...

That would leave broad discretion to the Obama administration to define the issue administratively ... The White House could direct federal agencies like the IRS [or Social Security] to accept marriages based on where a couple got married, not where they live. ...

Supreme Court To Decide On DOMA

     The Supreme Court has agreed to hear a case concerning the constitutionality of the Defense of Marriage Act (DOMA) which prevents Social Security from recognizing same sex marriages sanctioned by state law.

Another Appellate Decision Holding DOMA Unconstitutional

     A second federal court of appeals has declared the Defense of Marriage Act (DOMA) unconstitutional. DOMA prevents the Social Security Administration from recognizing same sex marriages allowed under state law. This issue will be decided by the Supreme Court in the not too distant future. There is an issue about whether it is constitutional for a state to outlaw same sex marriages. That argument may or may not prevail at the Supreme Court but it's different and not as strong as the argument that DOMA is unconstitutional.

DOMA Ruled Unconstitutional

     A panel of the U.S. First Circuit Court of Appeals has ruled that the Defense of Marriage Act (DOMA) is unconstitutional. DOMA prevents the Social Security Administration from recognizing same sex marriages allowed under state law. The ruling has no immediate effect since the Court stayed enforcement of its ruling until all appellate review is finished. The practical effect of this is to make it nearly certain that the Supreme Court will review the constitutionality of DOMA in its next term which will begin, as always, on the first Monday in October. Social Security will be the federal agency most affected if DOMA is struck down.

Doing What You Won't Defend

Lambda Legal, "the oldest national organization pursuing high-impact litigation, public education and advocacy on behalf of equality and civil rights for lesbians, gay men, bisexuals, transgender people and people with HIV", says that it expects that the "executive branch will continue to enforce [the Defense of Marriage Act (DOMA) which prevents federal recognition of same-sex marriages] until it is repealed by Congress or struck down by the courts ..."

If this is accurate, and I expect it is, this puts the Social Security Administration in an awkward position. It must apply DOMA but if this is appealed to the federal courts, the Department of Justice will not defend what Social Security has done. I understand the logic that gets you to this position but how do you explain to a widow or widower that they cannot get Social Security benefits because theirs was a same-sex marriage -- even though the widow or widower has read that the Attorney General is unwilling to defend such a result?

Same Sex Marriages To Be Recognized At Social Security?

The Attorney General has released a statement saying that the Department of Justice will no longer defend the constitutionality of section 3 of the Defense of Marriage Act (DOMA) as applied to legally married same-sex couples and will so advise courts.

It would appear to me that Social Security must now recognize legally married same-sex couples. I do not think this would apply to civil unions.

Social Security should give advise to its employees on this subject pretty much immediately.

When Will DOMA Be Repealed?

President Obama has told The Advocate that he believes that the Defense of Marriage Act (DOMA) should be repealed. DOMA keeps Social Security from recognizing same sex marriages. Social Security would be far more affected than any other agency if DOMA is repealed.

Even a year ago I would have thought that repeal of DOMA was out of the question. Now, it seems like it is only a matter of time, even with Republicans in control of one house of Congress. This has to be one of the most amazing changes in public opinion in my lifetime.

Court Finds DOMA Unconstitutional

A federal district court judge in Massachusetts has declared the Defense of Marriage Act (DOMA) unconstitutional. DOMA prevents Social Security from considering state-sanctioned same sex marriages even though Social Security normally is bound by state law in determining family relationships. If this stands, and that is a big "if," there would be significant effects upon Social Security benefits for wives, husbands, widows and widowers.