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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Saturday, August 10, 2013

Social Security Administration and Same-Sex Marriage

There have been, and no doubt will continue to be, some interesting legal developments in the wake of the landmark SCOTUS same-sex marriage decisions from June.  This post details a recent policy adaptation emanating from the Social Security Administration in reaction to the landmark case.

Now known as a "Windsor Same Sex Marriage Claim" in the SSA's Program Operations Manual System, a same-sex couple may apply for social security benefits so long as:
  • the applicant couple were married in a state that permits same-sex marriage; and
  • the couple is domiciled at the time of the application for benefits in a state recognizing same-sex marriage.
BuzzFeed Politics reporter Chris Geidner characterizes this new policy as the federal government's first significant implementation of the SCOTUS' Windsor decision, striking-down the Defense of Marriage Act and its, er, traditional definition of marriage.  According to Geidner, applicants that were legally married in a state that recognizes same-sex marriage, but are domiciled in a state that does not recognize such marriages at the time they apply for benefits, have their benefit applications placed on hold status.

In limbo with the SSA; that's not where you want to be if you've worked for, and are entitled to benefits.  We here at the Law Blogger agree with Stanford Law Fellow William Baude's take on the issue, for the Volokh Conspiracy blog:
But the [SSA's policy] decision has the unfortunate effect of ensuring that same-sex couples will be married for some federal purposes and not for others. My view is that one of the important attributes of marriage as a legal matter is the way it functions as a cross-cutting and trans-substantive. [sic]  So this is not a good thing. This should be a reminder that Congress really ought to step up and enact a choice of law rule, but I am not holding my breath. [Brackets supplied.]
Baude suggests another class of applicants potentially entitled to benefits; civil unions.  Lots of litigation will go down before the line eventually gets drawn.  And if the federal coffers are not to be depleted, there must be a line somewhere.

Until then, we will be looking for the significant cases to emerge from the federal courts that navigate the tricky intersection of same-sex marriages and social security.

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