The federal government won't recognize same-sex couples, but it can pay benefits to their children. That's the result of a U.S. Department of Justice opinion released June 9. According to the opinion, federal law does not prohibit the Social Security Administration from paying insurance benefits to the nonbiological child of a partner in a Vermont civil union. The decision is notable because the Defense of Marriage Act bars the government from extending federal benefits to gay and lesbian couples.
The opinion was written by Steven Engel, deputy assistant attorney general for the Justice Department's Office of Legal Counsel. OLC, which provides legal guidance to the executive branch, was responding to a request from Thomas Crawley, the acting general counsel of the Social Security Administration. Crawley asked whether the Defense of Marriage Act would bar the payment of Social Security child insurance benefits to the son of the Vermont couple.
A footnote in the OLC's opinion states that Crawley told the Justice Department that the commissioner of Social Security had agreed to be bound by Engel's decision. Engel declined to comment for this story, and Crawley did not return calls.
Gay marriage advocates are pleased by the OLC opinion. Northwestern University law professor Andrew Koppelman calls it "excellent, clear, well-reasoned, persuasive ... and surprising." He explains: "Because the Bush administration has been so hostile to same-sex marriage, I would have expected the use of even strained legal reasoning to avoid anything that smacks of recognition." Koppelman has authored numerous books and articles on gay rights, including a law review article entitled "Dumb and DOMA."
Not surprisingly, opponents of gay marriage take a dimmer view. Peter Sprigg, vice president for policy at the Family Research Council in Washington, D.C., says that he's "disappointed" by the opinion. Sprigg adds: "There have been a number of times when we felt this Justice Department could and should have taken much more firm pro-family positions, but failed to do so."
The case involves two women in a Vermont civil union, identified only as Karen and Monique in the OLC opinion. Monique gave birth to their son Elijah in 2005, and Karen was listed on the birth certificate as "second parent." That year Karen also began receiving disability benefits under Social Security, and she filed a claim for benefits on behalf of her son. (Children of adults who are receiving Social Security disability payments are eligible for benefits in their own right.)
The OLC opinion doesn't say, but it appears that the couple and Social Security were at odds over Elijah's eligibility, which led to Crawley's request for an interpretation of DOMA. The 1996 law bars the federal government from recognizing or granting benefits to any kind of same-sex relationship, whether it be a marriage, civil union or domestic partnership.
But the OLC opinion draws a distinction between benefits for spouses and benefits for children. According to the decision, the eligibility of a child for Social Security benefits isn't conditioned on the existence of a marriage or on the federal rights of a spouse. The law only requires the existence of a parent-child relationship, which doesn't have to be a biological one. "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," the opinion states. Under Vermont law, Elijah meets those criteria.
Sprigg, who is not a lawyer but has authored a book opposing gay marriage, disagrees with the OLC's analysis and insists that the opinion is in effect recognizing a gay union. "Although worded in a fairly narrow, technical way, the bottom line remains that a federal benefit is being granted because of the effect of a Vermont civil union -- which has no standing in federal law," Sprigg argues.
Maggie Gallagher, the president of the Institute for Marriage and Public Policy, which also opposes gay marriage, declined to comment because she had not seen the OLC opinion. Gallagher couldn't deal with the issue immediately because she was too "obsessed with fielding calls from California." A California state Supreme Court decision allowing gays to marry took effect Monday.
But Yale University law professor William Eskridge, who has written frequently about gay and lesbian issues, says the OLC opinion is a "sound analysis." According to Eskridge, the Bush administration "believes in reading statutes according to their plain meaning -- which is all the Justice Department is doing here."
The OLC opinion was issued Oct. 16, 2007, but wasn't made public until last week. Justice Department spokesman Erik Ablin says that not all opinions are made public due to confidentiality, and when they are, there is generally a lag of several months. Ablin adds that before publishing an opinion, OLC seeks approval from the agency that requested the opinion, and also solicits the views of any other agencies that might be affected by it.
The OLC, a previously obscure office, has frequently found itself in the headlines in recent years, most notably for several controversial opinions on detainee interrogation procedures.