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Child of couple in civil union can receive Social Security insurance benefits:

So says the Bush administration's Office of Legal Counsel in an opinion letter interpreting the effect of the Defense of Marriage Act on the benefits eligibility of the child of a non-biological "second parent" in a civil union:

Although DOMA limits the definition of "marriage" and "spouse" for purposes of federal law, the Social Security Act does not condition eligibility for CIB [child's insurance benefits] on the existence of a marriage or on the federal rights of a spouse in the circumstances of this case; 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. A child's inheritance rights under state law may be independent of the existence of a marriage or spousal relationship, and that is indeed the case in Vermont. Accordingly, we conclude that nothing in DOMA would prevent the non-biological child of a partner in a Vermont civil union from receiving CIB under the Social Security Act.

There's a good summary of the opinion letter, the factual background, and the reactions of both supporters and opponents of same-sex marriage and civil unions at Law.com. Peter Sprigg of the Family Research Council, for example, is quoted as being "disappointed" that the administration did not take a "pro-family" position by denying benefits to the child.

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.

Pliny, the Elder (mail):
Mr. Sprigg may be unaware that the general background theory of such entitlements is that they are the property of the child. Denying payment would be a slap not at the "immoral" parent but at the innocent child.
6.19.2008 9:12pm
Ex-Fed (mail) (www):
This totally undermines the institution of the welfare state. My relationship to the government teat is weakened. I'm going to have to go get my entitlements from a box turtle or something.
6.19.2008 9:31pm
Waldo (mail):
If elegibility for benefits isn't dependent on marriage, then there's no reason to deny them to children of civil unions. There's also no reason to deny them to children of unmarried heterosexual couples.
6.19.2008 9:37pm
theobromophile (www):
Peter Sprigg of the Family Research Council, for example, is quoted as being "disappointed" that the administration did not take a "pro-family" position by denying benefits to the child.

No irony alert? Sheesh.

As a second point: some 40% (ish) of children are born out of wedlock. While the more ideal situation would be for children to be born to two parents who love each other and want the child, reality has not been cooperating. Such rulings are good, not just for the small minority of children who have gay parents, but for the children of unwed parents.
6.19.2008 9:59pm
Parenthetical:

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.

Indeed. It's the birth certificate that seems to control here (and the intestate rights that flow from it).

How exactly the names ended up on the birth certificate (second-parent adoption, born into a civil union, unmarried partner) seems entirely beside the point for the purposes of CIB benefits under the SSA.
6.19.2008 10:00pm
Duncan Frissell (mail):
Considered as nullius filius, a bastard has no inheritable blood in him, and therefore no estate can descend. to him; but he may take by testment, if properly described,

Bastardy was created not to punish innocence but to protect legitimacy and to reduce interneicine warfare over titles.

Bastardy had a great deal to recommend it. Certaily the Anglo-Saxon world avoided much of the internal conflict of the Catholic countries.
6.19.2008 10:16pm
DangerMouse:
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.

Do you think that's going to make a darn bit of difference for a judge who's going to use anything to overturn the DoMA? This is going to be twisted by some judge who says "even the Bush Administration has watered down DoMA. It serves to purpose... blah blah, more legislation from the bench."

The correct result: So-called "civil union" is a fake arrangement, hence it creates no other rights. The child, insofar as he has any inheritance rights, has them from his original, real, biological parents.
6.19.2008 10:49pm
AnneS (www):
That's right, DangerMouse. Screw federalism and decades of interpretation of the Social Security law.

Did this remind anyone else of Woodward, the case of the posthumously conceived child where the federal court certified the question of whethere such a child had inheritance rights to the Massachusetts Supreme Court? Just another in a string of precedents showing that CIB benefits are correctly determined by state inheritance laws. If Congress doesn't like it, it needs to change the statute. I doubt Congress cares to take a brave stand against children receiving death benefits, though.
6.19.2008 10:57pm
gattsuru (mail) (www):
Dangermouse, if I understand the law correctly, the child has no inheritance rights under state law arises from the parent-child relationship, rather than actual blood. I assume it's that way intentionally for adoption purposes.

In that case, this is an odd, but largely correct result. As Vermont law allows a male-male or female-female pairing to adopt, and thus the parent-child viewpoint was recognized lawfully by the state.
6.19.2008 10:58pm
gattsuru (mail) (www):
Dangermouse, if I understand the law correctly, the child has no inheritance rights under state law arises from the parent-child relationship, rather than actual blood.



Gah, that should be "Dangermouse, if I understand the law correctly, the child does have inheritance rights under state law that arise from the parent-child relationship, rather than actual blood." To be clear, anyone who adopts has a parent-child relationship and thus a line of inheritance, and neither adoption nor inheritance law care about gender or sex or biological relation.
6.19.2008 11:02pm
gwinje:
It must be great, as a lawyer, to be free to follow the law in the waning months of the Bush abomination, er, administration.
6.19.2008 11:22pm
DangerMouse:
From the news article:

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."

Thus, we begin this story with a fiction. Apparently, the son has no father. Birth certificates should identify mothers and fathers, first.

That year Karen also began receiving disability benefits under Social Security, and she filed a claim for benefits on behalf of her son.

HER son? No. It's not her son. It's Monique's son.

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.

But since they're not married, and it's a fake relationship (for federal purposes, and also in reality), then the opinion is wrong and there is no "parent-child" relationship under federal law. The only parents here are Monique, and the unnamed father.

The result would be different if Monique had married a different man after conceiving from the father. In that case, the stepfather would be considered a legitimate parent under federal law because his marriage is real, not fake. Karen is not a stepmother, stepfather, or step-parent.
6.19.2008 11:31pm
gattsuru (mail) (www):
Thus, we begin this story with a fiction. Apparently, the son has no father. Birth certificates should identify mothers and fathers, first.


Not under state law. This is just a legal paper created by fiat, not some moral system or demonstration of biological parenthood, and understood as such.

But since they're not married, and it's a fake relationship (for federal purposes, and also in reality), then the opinion is wrong and there is no "parent-child" relationship under federal law. The only parents here are Monique, and the unnamed father.


Vermont state law does not require marriage or biological parenting to establish a birth certificate, only a civil union. The relationship may be 'fake' -- I'd debate that, although I expect it to be a matter of personal opinion -- but that's not particularly relevant when the state law defines such a relationship, fake or otherwise, as meaningful for the content of the birth certificate.
6.20.2008 12:15am
Daniel Chapman (mail):
Call it whatever you like. She's a "civil parent" or "second parent" or "Legal SSM Fictional parent" if you like. Under Vermont law, there IS a legal parent-child relationship. You could make a similar argument about adoptive or step-parents... it's all a legal fiction, but it's LEGAL.

Just deal with it... you're just making yourself look foolish. And I'm on YOUR side of the SSM debate, unfortunately...
6.20.2008 12:23am
wolfefan (mail):
Dangermouse is just one of those judicial activists....doesn't care about the law - just seeking to legislate from the blog...
6.20.2008 12:39am
Oren:
Just deal with it... you're just making yourself look foolish. And I'm on YOUR side of the SSM debate, unfortunately...
Congress wrote the DOMA but did not foresee the folly of defering to state judgments of parentage. They will no doubt fix this unintentional blunder as soon as possible.
6.20.2008 1:59am
Floridan:
"They will no doubt fix this unintentional blunder as soon as possible."

Yes, please save us from . . . , well, whatever they're saving us from.
6.20.2008 8:28am
Proud to be a liberal :
Birth certificates do not necessarily document biological parenthood. In the case of sperm donation, the name of the father who raise the child is put on the birth certificate, not the name of the biological parent. The same is often true in the case of adoption.

There are children who have only one parent's name on the birth certificate because only the mother is known.

It is pro-child for a child to be eligible for Social Security benefits based on two parents rather than just one.
6.20.2008 8:56am
New World Dan (www):

It is pro-child for a child to be eligible for Social Security benefits based on two parents rather than just one.

What about 3 parents? Or even more than that? Is there a limit in the law? Can I go enter into civil unions with the terminally ill so my child can inherit their benefits?
6.20.2008 9:55am
David M. Nieporent (www):
But since they're not married, and it's a fake relationship (for federal purposes, and also in reality), then the opinion is wrong and there is no "parent-child" relationship under federal law.
The issue is not what exists "under federal law," but what exists under state law.
6.20.2008 10:21am
Floridan:
"Can I go enter into civil unions with the terminally ill so my child can inherit their benefits?"

I don't know about civil unions, but this is hardly unheard of in marriages of the heterosexual sort.
6.20.2008 10:23am
Cappo:
I find the analysis to be correct. However I worry about inconsistent treatment. If the couple were to relocate to Arizona, for example, the child would cease to have rights to CIB until the child is formally adopted by the non-biological parent.
6.20.2008 11:27am
wfjag:

I find the analysis to be correct. However I worry about inconsistent treatment. If the couple were to relocate to Arizona, for example, the child would cease to have rights to CIB until the child is formally adopted by the non-biological parent.


Unless the Full Faith and Credit clause requires Arizonia to recognize the Vermont Civil Union. However, the test cases will likely start with non-California same sex couples now rushing to California to "marry" and then returning home.

I wonder how SSM will be when alimony and child support orders start being rendered? And, there will be same sex palimony litigation. SSM - the family law practitioner's full employment movement!
6.20.2008 11:46am
Parenthetical:

Unless the Full Faith and Credit clause requires Arizonia to recognize the Vermont Civil Union.

Insofar as the birth certificate is what seems to control here, there have already been successful challenges of this sort.

Last year the 10th circuit dealt with a case involving several second-parent adoptions (by a person of the same sex as the other parent). The disposition was messy as to standing, but in one case the court held that FFC (and to some degree the 14th amendment) dictated that Oklahoma must honor changes to the birth certificate (even if the relations between the parents were a different issue). Finstuen v. Crutcher. There are other cases along the same lines elsewhere (particulars vary of course).

FFC claims to recognize a civil union seem less likely to succeed for most purposes, if the receiving state doesn't have civil unions. There are some purposes (child support orders, for example) where FFC and some federal statutes have prevailed.
6.20.2008 12:33pm
one of many:
It must be great, as a lawyer, to be free to follow the law in the waning months of the Bush abomination, er, administration.
But the OLC issued the ruling last October... .
6.20.2008 1:54pm
Randy R. (mail):
Dangermouse: "The correct result: So-called "civil union" is a fake arrangement, hence it creates no other rights. The child, insofar as he has any inheritance rights, has them from his original, real, biological parents."

But -- but -- you are the guys who keep telling us gays that civil unions are just as good for us as marriage. So now that we know that even you agree that civil unions are fake, then all the more important to make marriage available to gays, right?
6.20.2008 1:57pm
New World Dan (www):

I don't know about civil unions, but this is hardly unheard of in marriages of the heterosexual sort.


That's essentially my point: Any system that can be gamed will. It's just a question of to what extent. The extent seems to be almost purely a function of the effort required relative to the reward realized.
6.20.2008 2:02pm
wfjag:
Thanks Parenthetical.
6.20.2008 2:22pm
one of many:
But -- but -- you are the guys who keep telling us gays that civil unions are just as good for us as marriage. So now that we know that even you agree that civil unions are fake, then all the more important to make marriage available to gays, right?

I see no indication that Dangermouse is one of the guys who keep telling you civil unions are just as good as marriage, I see every indication that Dangermouse is one of those guys who rejects civil unions as being too similar to marriage. As one of those guys who comes close to telling you civil unions are as good as marriage (I subscribe to the idea that civil unions are as close to marriage as the government can legitimately get and would be happy if the government were to cease recognizing marriage and only recognized civil unions) I strongly object to being included in the same group as Dangermouse. I have no problem with the OLCs ruling, I cannot imagine how given the existing law they could have ruled otherwise.

As a side note FFC of civil unions is specifically excluded under DOMA, one would have to first show that congress does not have the authority to exclude civil unions from the FFC provisions of the constitution, a difficult task given the extent to which the commerce clause has been stretched, but possible if you get the right judges. One would then(in a state like Arizona) have to overrule the long line of precedent about the public policy exception to FFC, possible but real tough.
6.20.2008 3:22pm
Ian Argent (www):
As I've said before:
As long as a man with a vasectomy can civilly marry a woman with a hysterectomy - both of them divorced atheists - I can see no reason to prevent gays from marrying civilly and enjoying all the rights, privileges, &responsibilities as the first couple.
6.20.2008 9:28pm