TN 19 (02-18)

A. PR 15-169 Validity of Canadian Same-Sex Marriage for Entitlement to Hospital Insurance Benefits – Kentucky

Date: July 27, 2015

1. Syllabus

The claimant and number holder (NH) married in October 2009 in Alberta, Canada. Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, Kentucky already has a history of recognizing valid foreign marriages. Because Kentucky allows and recognizes same-sex marriages and valid foreign marriages, the claimant is married to the number holder (NH) under Kentucky law for purposes of determining the claimant’s entitlement to health insurance benefits (HIB) on the NH’s record.

2. Opinion

QUESTION

You asked whether the number holder (NH) and Claimant, who entered into a same-sex marriage in Canada, are validly married under Kentucky law for purposes of determining Claimant’s entitlement to hospital insurance benefits (HIB) on NH’s earnings record.

OPINION

Claimant is validly married to NH under Kentucky law for purposes of determining Claimant’s entitlement to HIB on NH’s earnings record.

BACKGROUND

According to the information provided, M~ (Claimant) married K~ (NH) on October XX, 2009, in Alberta, Canada. Both Claimant and NH are female and

NH currently receives old-age insurance benefits. On or about March XX, 2014, Claimant applied for HIB on NH’s earnings record. Claimant was sixty-seven years old when she filed the application and had obtained Lawful Permanent Resident Status in the United States on February XX, 2014. Claimant provided documentation showing she and NH currently reside in F~, Kentucky.

DISCUSSION

A claimant may be entitled to HIB if she has attained age 65 and is entitled to monthly insurance benefits under section 202 of the Social Security Act, or would be entitled to those benefits except that she has not filed an application. See Social Security Act (Act) § 226(a); 42 C.F.R. § 406.10(a) (2015)¹ ; See also Program Operations Manual System (POMS) HI 00801.022C.1 (providing an individual aged 65 or over who is eligible for spouse’s benefits may file an application for HIB only). A claimant is entitled to wife’s insurance benefits (WIB) under section 202 of the Act if she is the wife of an individual entitled to old-age insurance benefits. See Act § 202(b)(1); 20 C.F.R. § 404.330(a). A claimant may qualify as the wife of an insured individual if validly married to the insured individual under the laws of the State where the insured individual had a permanent home when the claimant applied for WIB. See Act §§ 216(b), 216(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; See also POMS RS 00202.001A.1 (providing a legal spouse of a living number holder must be validly married to the number holder under the laws of the State of the number holder’s domicile at the time she files an application or during the life of the application). Because the Claimant and NH currently reside in F~, Kentucky, we look to Kentucky law to determine if Claimant and NH are validly married.

Until recently, Kentucky law prohibited same-sex marriage or the recognition of same-sex marriage. See Ky. Const. § 233A, Ky. Rev. Stat. Ann. §§ 402.005, 402.020(1)(d), 402.040(2), 402.045 (West 2015). On June 26, 2015, however, the U.S. Supreme Court held that same-sex couples must be permitted to marry in all States. See Obergefell v. Hodges, 576 U.S. --, 2015 WL 2473451, at *19 (2015). The Court also held that State laws prohibiting recognition of valid same-sex marriages were invalid. The Court reasoned that, having required all States to allow same-sex couples to marry, “[i]t follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Id. at *23. As a result, beginning June 26, 2015, Kentucky must recognize all out-of-state same-sex marriages. POMS GN 00210.003A (State law chart noting that Kentucky recognized same-sex marriages performed in another jurisdiction beginning June 26, 2015.)

In this case, Claimant and NH provided a Canadian marriage certificate dated October XX, 2009. As of July 20, 2005, Canada recognized the validity of same-sex marriages. See The Law Library of Congress, Report for U.S. Soc. Sec. Admin. LL File No. 2014-010685, Canada: Legal Recognition of Marriage (2014). The marriage certificate and other information provided indicate the marriage is valid under Canadian law.

Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, Kentucky already has a history of recognizing valid foreign marriages. See Dannelli v. Dannelli’s Adm’r, 67 Ky. 51 (4 Bush), 1868 WL 4050, *5 (Ky. 1868) (noting it is settled law in Kentucky “that a marriage valid in the country where celebrated is to be held valid in other countries where the parties may be domiciled”); Faustre v. Commonwealth, 19 S.W. 188 (Ky. 1892) (upholding conviction for a bigamous Kentucky marriage based on an existing Canadian marriage); See also POMS PR 02706.020 (finding Kentucky would recognize a marriage from the Netherland Antilles). Because Kentucky must now allow and recognize same-sex marriages, and because Kentucky recognizes valid foreign marriages, Kentucky would have no legal basis on which to refuse to recognize a valid Canadian same-sex marriage. Thus, we conclude Kentucky would recognize Claimant and NH’s Canadian same-sex marriage.

CONCLUSION

Claimant is validly married to NH under Kentucky law for purposes of determining Claimant’s entitlement to HIB on NH’s earnings record

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: __________________

Laura Verduci

Assistant Regional Counsel

B. PR 14-148 Windsor Claim – OGC Opinion Request: Foreign Marriage: K~ M~, FO California’s Recognition of Canadian Same-Sex Marriage R~: Claimant J~: Number Holder

Date: August 15, 2014

1. Syllabus

California will recognize a same-sex marriage occurring in Canada, so long as the marriage was valid under Canadian law.

2. Opinion

QUESTION

You asked whether Claimant and Number Holder (NH), who entered into a marriage in Alberta, Canada, on September XX, 2009, are validly married for determining Claimant’s entitlement to auxiliary spousal benefits on NH’s record. The couple currently resides in California.

SHORT ANWER

Yes. The marriage between Claimant and NH is considered valid under the Social Security Act (Act).

SUMMARY OF EVIDENCE

In November 2013, Claimant filed an application for auxiliary spouse benefits on NH’s account. Claimant submitted a marriage certificate issued by the Director of Vital Statistics in Alberta, Canada. The certificate shows that Claimant and NH married each other on September XX, 2009 in C~, Canada. The certificate also reflects that J~ was a resident of L~ J~, California and R~ was a resident of C~, Canada at the time of their marriage. The K~ M~, California field office indicated that the couple currently resides in L~ J~, California.

APPLICABLE LAW

Federal Law

A claimant is entitled to spousal benefits under Title II of the Act if, among other things, he or she is the spouse of an insured individual who is entitled to old-age or disability benefits. ² See Act §§ 202(b),(c), 216(a)(1); 20 C.F.R. § 404.330. The claimant bears the burden of proving that he is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.725. In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits. See Act § 216(h)(1)(A)(i); POMS GN 00210.006.B.1. Our specific inquiry is whether the Canadian same-sex marriage between Claimant and NH is valid under California law.

California Law

Effective March 8, 2000, California amended its Family Code to provide that a marriage is only valid between a man and a woman. Cal. Fam. Code § 308.5. However, in May 2008, the California Supreme Court held that same-sex couples had the right to marry. In Re Marriage Cases, 43 Cal.4th 183, 183 P.3d 384 (Cal. 2008). In November 2008, California voters passed Proposition 8, which amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. Art. I, § 7.5; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). On August 4, 2010, the District Court for the Northern District of California held that Proposition 8 was unconstitutional under both the Due Process and Equal Protection Clauses of the United States Constitution. Id. at 1004. However, the Ninth Circuit granted a stay on August 16, 2010, pending resolution of an appeal. See Perry v. Schwarzenegger, No. 10-16696, 2010 WL 3212786 (9th Cir. Aug. 16, 2010). Upon review, the Ninth Circuit held that the people of California violated the Equal Protection Clause by “using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so,” and that Proposition 8 was unconstitutional on this basis. Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012). On June 26, 2013, the United States Supreme Court held that the proponents of Proposition 8 did not have standing to appeal, upholding the district court’s order declaring the Proposition unconstitutional. See Hollingsworth v. Perry, 133 S.Ct. 2652 (2013).

On June 28, 2013, the Ninth Circuit dissolved its stay in Perry, and same-sex marriages in California once again became legal. Perry v. Brown, 725 F.3d 968 (9th Cir. 2013); see also Ruling by the U.S. Supreme Court Regarding Same-Sex Marriages, Cal. Dept. of Pub. Health (June 28, 2013) (State Registrar’s Message to County Clerks), available at http://gov.ca.gov/docs/DPH_Letter.pdf.

³ California also recognizes same-sex marriages from other jurisdictions. California Family Code § 308(a) provides that a marriage contracted outside of California, and valid by the laws of the jurisdiction where contracted, would be valid in California. Cal. Fam. Code § 308(a). However, California Family Code § 308(b) provides that same-sex marriages contracted outside of California are only considered valid within California if that marriage was contracted prior to November 5, 2008, the date Proposition 8 was enacted. ⁴ Cal. Fam. Code § 308(b). On July 7, 2014, the California legislature repealed California Family Code Section 308(b). See 2014 Cal. Legis. Serv. Ch. 82 (S.B. 1306) (providing, “The bill would also delete the limitation on the validity of marriages contracted outside this state between 2 persons of the same sex.”) (effective Jan. 1, 2015).

Canadian Law

On July 20, 2005, the Civil Marriage Act legalized same-sex marriage in every province across Canada by defining marriage as “the lawful union of two persons to the exclusion of all others,” and instructing that, “a marriage is not void or voidable by reason only that the spouses are of the same sex.” Civil Marriage Act, S.C. 2005, c. 3 § 4 (Can.). Thus, same-sex marriage was legal in Alberta, Canada, as of July 20, 2005.

Finally, there appears to be no Canadian residency requirement to be married in Canada. On June 26, 2013, the Canadian Parliament amended the Civil Marriage Act, specifically recognizing civil marriages of non-resident persons:

A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have capacity to enter into it under the law of their respective state of domicile.

Civil Marriage Act, S.C. 2013, c. 30, pt. 1, § 5.

ANALYSIS

Pursuant to California Family Code § 308(a), California will recognize a same-sex marriage validly entered into outside of California. See Cal. Fam. Code § 308(a). As discussed, although section 308(b) provided that the out-of-state same-sex marriage must have occurred prior to November 5, 2008, California passed legislation on July 7, 2014, repealing section 308(b) from the Family Code. ⁵ Thus, the only outstanding issue is whether the couple’s marriage was valid under Canadian law.

Here, Claimant and NH were married on September XX, 2009 in Alberta, Canada. At that time, same-sex marriages were legal in Canada pursuant to the Civil Marriage Act. Moreover, the 2013 Amendment of the Civil Marriage Act applies retroactively to extend same-sex marriage rights to non-residents. See Civil Marriage Act, S.C. 2013, c. 30, pt. 1, § 5. Therefore, it was immaterial that NH was not a resident of Canada at the time of his marriage to Claimant, and the marriage between NH and Claimant was valid under Canadian law.

CONCLUSION

California will recognize a same-sex marriage occurring in Canada, so long as the marriage was valid under Canadian law. Here, the marriage between NH and Claimant was valid under Canadian law, and therefore, California would also recognize it as valid.

Footnotes:

[1]

^. All references to the Code of Federal Regulations are to the 2015 version.

[2]

^. To be eligible for spousal benefits, the claimant must also show that he or she: (1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage; (2) has filed an application for spousal benefits; (3) has attained age 62 or has in his or her care a child entitled to child’s benefits; and (4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See Act §§ 202(b),(c); 20 C.F.R. § 404.330. As we have not been asked to provide an opinion on whether Claimant meets these additional requirements, our opinion will focus on whether Claimant is the NH’s spouse.

[3]

^. Even prior to the Hollingsworth ruling, California recognized the validity of same-sex marriages performed prior to the effective date of Proposition 8. After the California Supreme Court’s ruling in In re Marriage Cases, California counties began issuing same-sex marriage certificates on June 16, 2008. These same-sex marriage certificates were legally issued until the effective date of Proposition 8 (November 5, 2008). In Straus v. Horton, 46 Cal.4th 364, 385, 474 (Cal. 2009), the California Supreme Court held that Proposition 8’s ban on same-sex marriage did not apply retroactively to invalidate an estimated 18,000 same-sex marriages entered into before the law was enacted. Id.; see also POMS RM 10212.035.A.1 (accepting marriage documents issued to same-sex couples for purposes of a name change if the marriage took place between June 16, 2008 and November 4, 2008).

[4]

^. According to Governor Schwarzenegger, Senate Bill 54, enacting California Family Law §§ 308(b) and (c), “clarifie[d] that California must also recognize as married couples that legally married in another state during the same period of time in which same-sex marriage was legal in California.” Cal. Fam. Code § 308: Historical and Statutory Notes; see also Governor Signs Harvey Milk Day and Marriage Recognition Bills, Equality California Press Release (October 12, 2009), available at http://www.eqca.org/site/apps/nlnet/content2.aspx?c=kuLRJ9MRKrH&b=4869041&ct=7567597 (“‘When California offered marriage licenses to same-sex couples in 2008, spouses who were already married in another state or country were prohibited from re-marrying in California,’ said Senator Leno. ‘Now those couples and their families are in limbo because their rights and protections under law are not clear. This new law will ensure that same-sex couples are protected by existing California law that recognizes all marriages equally, regardless of where they are performed.’”).

[5]

^. Even prior to the repeal of Family Code section 308(b), California officials interpreted the dissolving of the Ninth Circuit’s stay in Perry as validating same-sex marriages from other jurisdictions, regardless of when they were contracted. See Perry, 725 F.3d 968; Ruling by the U.S. Supreme Court Regarding Same-Sex Marriages, Cal. Dept. of Pub. Health (June 28, 2013) (State Registrar’s Message to County Clerks), available at http://gov.ca.gov/docs/DPH_Letter.pdf (“Same-sex couples legally married in another jurisdiction will be considered already legally married under California marriage licensing and certification laws”).