Justice Department OKs Benefits for Lesbian Couple's Child

The federal government may not recognize same-sex couples, but it can pay benefits to their children. That is 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.

Opinions Pro and Con

Gay marriage advocates are pleased by the OLC opinion. Northwestern University law professor Andrew Koppelman calls it “excellent, clear, well-reasoned, persuasive … and surprising.” Not surprisingly, opponents of gay marriage take a dimmer view. Peter Sprigg, vice president for policy at the Family Research Council in Washington, DC, says that he is “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

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 does not 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.

Nevertheless, 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 is not 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 does not have to be a biological one. “Rather, eligibility turns upon the states 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.

The OLC opinion was issued Oct. 16, 2007, but was not made public until mid-June. 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 and Controversy

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.

Sue Reisinger is a senior reporter for The American Lawyer, a sister publication of this newsletter.

The federal government may not recognize same-sex couples, but it can pay benefits to their children. That is 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.

Opinions Pro and Con

Gay marriage advocates are pleased by the OLC opinion. Northwestern University law professor Andrew Koppelman calls it “excellent, clear, well-reasoned, persuasive … and surprising.” Not surprisingly, opponents of gay marriage take a dimmer view. Peter Sprigg, vice president for policy at the Family Research Council in Washington, DC, says that he is “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

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 does not 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.

Nevertheless, 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 is not 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 does not have to be a biological one. “Rather, eligibility turns upon the states 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.

The OLC opinion was issued Oct. 16, 2007, but was not made public until mid-June. 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 and Controversy

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.

Sue Reisinger is a senior reporter for The American Lawyer, a sister publication of this newsletter.