TN 7 (01-18)

PR 05805.006 California

A. PR 18-016 Validity of Same-Sex Marriage in Spain for Entitlement to Spousal Benefits

Date: November 9, 2017

1. Syllabus

The number holder (NH) and the Claimant were married in Spain in October 2005. The NH was domiciled in California when the Claimant applied for benefits; therefore, we consider whether their Spanish marriage is valid under the California law. Effective October 26, 2005, Spanish citizens could legally marry non-Spanish nationals of the same sex regardless of whether that person’s country of origin permitted same-sex marriage. Under California law, a marriage that was valid in the jurisdiction in which it was entered into is also valid in California. Because the marriage between Claimant and NH was valid under Spanish law, California would also recognize it as valid. As such, we believe the Agency could find the marriage is valid under the Act for purposes of determining Claimant’s entitlement to spousal benefits.

2. Opinion

QUESTION

You asked whether claimant A~ (Claimant) and number holder J~ (NH), who were married in Spain and are now domiciled in California, are validly married for the purpose of determining Claimant’s entitlement to spouse’s benefits.

SHORT ANSWER

Yes. Because California would recognize Claimant’s marriage to NH as valid, we believe the agency may rely on the marriage to find Claimant entitled to spouse’s benefits under the Social Security Act (Act).

SUMMARY OF EVIDENCE

The NH, a United States citizen, applied for and was granted retirement benefits effective February 1997. The NH married the Claimant, a Spanish national, in Spain on October XX, 2005. As proof of their marriage, the Claimant provided a certified copy of their marriage certificate from the Civil Registry of Z~.1 From October 2005 until July 2014, the Claimant and NH lived for half of the year in Spain and half of the year in the United States. The Claimant and NH have been domiciled in California since July 2014, when the Claimant received permanent resident status. On November XX, 2016, the Claimant filed for spouse’s benefits on the NH’s account.

APPLICABLE LAW

Federal Law

An applicant is entitled to benefits as a spouse under Title II of the Act if, among other things, he is the spouse of an insured individual who is entitled to old-age or disability benefits.2 See 42 U.S.C. §§ 402(c), 416(a)(1); 20 C.F.R. § 404.330. The applicant must demonstrate that he is in a valid marital relationship with the insured such that he the insured’s spouse. See 20 C.F.R §§ 404.345, 404.704, 404.723, 404.725. To determine whether the applicant is the insured individual’s spouse, the agency looks to the law of the State where the insured is domiciled. Social Security Act § 216(h)(1)(A)(i); see also 20 C.F.R. § 404.345; Program Operations Manual System (POMS) RS 00202.001 (“A legal spouse must be validly married to the number holder under the laws of the State of the number holder’s domicile at the time the claimant files an application; or have the same rights as a husband or wife to share in the distribution of the NH’s intestate personal property under the laws of the State of the NH’s domicile at the time of filing.”).

California Law

The California Family Code provides that “[a] marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in California.” Cal. Fam. Code § 308; see Rosales v. Battle, 113 Cal. App. 4th 1178, 1183 (Cal. App. Ct. 2003) (applying the marriage laws of Mexico to determine the validity of a foreign marriage pursuant to California Family Code § 308).

Spanish Law

On July 2, 2005, Spain amended its Civil Code to permit civil marriages between individuals of the same sex. See Graciela Rodriguez-Ferrand, Report for the Social Security Administration: Spain: Same-Sex Marriage, LL File No. 2014-010727 (May 2014) (citing Código Civil art. 44 (B.O.E. July 25, 1889, as amended)) (Law Library of Congress Report); POMS PR 05830.342 Spain (PR 15-084, addressing validity of Spanish same-sex marriage under District of Columbia law when the number holder was domiciled in Spain). The marriage has full legal effect when it is recorded in the civil registry; at that time, the officer of the civil registry issues a marriage certificate stating the date, time, and place of the marriage.3 See Law Library of Congress Report (citing Código Civil arts. 49, 51).

Prior to October 26, 2005, Spanish citizens could only legally marry non-Spanish nationals of the same sex if the non-Spanish national was from a country where same-sex marriage was legal. See Resolución 26 de octubre 2005 de la Dirección General de Registros y Notariado. On October 26, 2005, the Spanish General Directorate of Registries and Notaries issued a resolution providing that a Spanish citizen may marry a non-Spanish national of the same sex regardless of whether that person’s country of origin permits same-sex marriage. Id. This resolution became effective of the date of its issuance, i.e., October 26, 2005, because it did not provide for a different effective date.4

ANALYSIS

Because the Claimant and NH were domiciled in California when the Claimant applied for benefits, we consider whether their Spanish marriage is valid under California law. Under California law, a marriage that was valid in the jurisdiction in which it was entered into is also valid in California. Cal. Fam. Code § 308.

Here, the NH and Claimant entered into a same-sex marriage in Spain on October XX, 2005, as evidenced by their marriage certificate from the Civil Registry of Z~. Código Civil arts. 49, 51 (marriage has full legal effect when it is recorded in the civil registry; at that time, the officer of the civil registry issues a marriage certificate stating the date, time, and place of the marriage). Effective October 26, 2005, Spanish citizens could legally marry non-Spanish nationals of the same sex regardless of whether that person’s country of origin permitted same-sex marriage. See Resolución 26 de octubre 2005 de la Dirección General de Registros y Notariado. Therefore, the marriage between the NH and Claimant was valid under Spanish law.5 As such, their marriage is also valid in California because “[a] marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in California.” Cal. Fam. Code § 308.

CONCLUSION

Because the marriage between Claimant and NH was valid under Spanish law, California would also recognize it as valid. As such, we believe the Agency could find the marriage is valid under the Act for purposes of determining Claimant’s entitlement to spousal benefits.

B. PR 17-155 Surviving Spouse’s Entitlement to Benefits Where Same-Sex Couple Married in Colorado and Were Domiciled in California at the Time of Number Holder’s Death

Date: July 28, 2017

1. Syllabus

The number holder (NH) was domiciled in California at the time of death; therefore, we apply California law to determine whether the Claimant was validly married to the NH. California recognizes all marriages that were validly entered into in other States, including same-sex marriages. Based on the evidence the Claimant provided, the Claimant is the NH’s surviving spouse because their marriage was valid under the Colorado law and would be recognized as a valid marriage in California. The agency could therefore find that the Claimant is the NH’s surviving spouse for purposes of the Act. The Claimant is entitled to surviving spouse benefits and the lump sum death payment on the NH’s record.

2. Opinion

QUESTION PRESENTED

You asked whether claimant A~ (Claimant) is entitled to surviving spouse benefits and the lump sum death payment on the record of number holder R~ (NH), where the couple entered into a same-sex marriage in Colorado in 1975 and the couple were domiciled in California when the NH died.

SHORT ANSWER

Yes. The Claimant is the NH’s surviving spouse because their marriage was valid under Colorado law and would be recognized as a valid marriage in California. The agency would be justified in finding that the Claimant is entitled to surviving spouse benefits and the lump sum death payment based on the first application he filed.

BACKGROUND

The Claimant alleged that he married the NH in Colorado on April XX, 1975. As evidence of the marriage, the Claimant provided a certified copy of a Marriage License and Marriage Certificate that the B~ County Clerk issued on April XX, 1975. The Claimant and NH lived in California but traveled to Colorado to get married after learning that the B~ County Clerk was willing to issue marriage licenses to same-sex couples.

The NH died fully insured in California on December XX, 2012. The Claimant filed a claim for surviving spouse’s benefits and the lump sum death payment on the NH’s record on December XX, 2014. The agency denied the claim on February XX, 2015 because the Claimant did not “meet the marriage requirement.” The Claimant did not appeal.

In January 2016, the Claimant received a widower’s green card after the United States Citizenship and Immigration Services reopened a 1975 green card petition that the NH had submitted for the Claimant, an Australian citizen.

The Claimant filed a new application for surviving spouse benefits on May XX, 2016.

LEGAL STANDARDS

1. Federal Law

To be entitled to survivor’s benefits under Title II of the Social Security Act (Act), a claimant must establish that he is the surviving spouse of an individual who died fully insured. See Social Security Act § 202(e), 216(c)(1); 20 C.F.R. § 404.335. Under Section 216(h) of the Act, the agency will find a claimant is the surviving spouse of an insured individual if the courts of the State in which the insured resided at the time of death would find that the claimant was validly married to the insured when he died. Social Security Act § 216(h)(1)(A)(i).

In addition to establishing that he is the insured’s surviving spouse as set forth above, to receive surviving spouse benefits, the claimant must show he is not married; he is at least age 60 (or age 50 and disabled); and his relationship with the insured lasted for at least nine months immediately before the insured died (or the relationship meets one of the alternatives to the nine month duration requirement). See Social Security Act § 202(e); 20 C.F.R. § 404.335.

The Act also provides for a lump-sum death payment (LSDP) to the surviving spouse of an individual who died fully insured. Social Security Act § 202(i); 20 C.F.R. § 404.390; Program Operations Manual System (POMS) RS 00210.001. In addition to establishing he is the insured’s surviving spouse, to receive the LSDP, the claimant also must have been living in the same household as the insured at the time of death and the claimant must apply for the LSDP within two years after the insured’s death. Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.001.

With respect to the agency’s application of State marriage laws, we note that in Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015), the Supreme Court held State laws invalid to the extent they exclude same-sex couples from marriage on the same terms and conditions as opposite-sex couples. Pursuant to Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate Obergefell. As a result, SSA will consider State-law same-sex-marriage bans, whether based on State constitutional or statutory provisions or case law void and ineffective. SSA will apply the relevant law to the facts as usual to evaluate marital status.

2. Colorado Law

To be validly married in Colorado, a couple must first obtain a marriage license and marriage certificate from a county clerk. Colo. Rev. Stat. §§ 14-2-105, 14-2-106. After receiving a marriage license, a couple solemnizes their marriage. Colo. Rev. Stat. § 14-2-109. The officiant (or the parties to the marriage, if they self-solemnize) completes the marriage certificate and submits it to the county clerk and recorder for registration. Colo. Rev. Stat. § 14-2-109. A marriage is considered valid in Colorado if it is licensed, solemnized, and registered. Colo. Rev. Stat. § 14-2-104.

Historically, in 2000, the Colorado legislature amended the Uniform Marriage Act to provide that a marriage was valid only if it was between a man and a woman. See Col. Rev. Stat. § 14-2-104(1) (as amended by Laws 2000, Ch. 233, § 1, eff. May 26, 2000). Additionally, any marriage that was not between a man and a woman would “not be recognized as valid” in Colorado. See Col. Rev. Stat. § 14-2-104(2) (as amended by Laws 2000, Ch. 233, § 1, eff. May 26, 2000). Colorado voters subsequently voted to amend the State constitution in a similar manner. See Colorado Const., art. II, § 31 (providing that marriage is between a man and a woman) (added by Amendment 43, Nov. 7, 2006, eff. Dec. 31, 2006).

In July 2014, the Federal District Court for the District of Colorado enjoined the State from enforcing laws banning same-sex couples from marrying. See Burns v. Hickenlooper, No. 14-cv-01817-RM-KLM, 2014 WL 5312541, at *1-*2 (D. Colo. Oct. 17, 2014). Colorado appealed to the Tenth Circuit, which was already considering a similar case from Utah. See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014). In Kitchen, the Tenth Circuit affirmed a lower court’s ruling that Utah laws barring same-sex marriage were unconstitutional. See id. at 1229-30. The Supreme Court denied review in Kitchen in October 2014, allowing the Tenth Circuit’s decision to stand. See Herbert v. Kitchen, 135 S. Ct. 265 (2014). Thereafter, in October 2014, the District of Colorado permanently enjoined enforcement of Colorado laws prohibiting same-sex marriage. Burns, 2014 WL 5312541, at *1.

3. California Law

California recognizes all marriages that were validly entered into in other States, including same-sex marriages. Cal. Fam. Code § 308.

ANALYSIS

1. The Claimant Is the NH’s Surviving Spouse

Because the NH was domiciled in California at the time of death, we apply California law to determine whether the Claimant was validly married to the NH. See Social Security Act § 216(h)(1)(A)(i).

A marriage entered into in another State is considered valid under California law if that marriage was valid under the laws of the State in which the couple married. Cal. Fam. Code § 308. The Claimant and NH married in Colorado, which banned same-sex marriage in 2000 and deemed any marriage that was not between a man and a woman to be invalid. See Col. Rev. Stat. § 14-2-104 (as amended by Laws 2000, Ch. 233, § 1, eff. May 26, 2000). However, pursuant to Obergefell, the agency considers Colorado’s prohibition on same-sex marriages to be ineffective, regardless of when the marriage took place. See Obergefell, 135 S. Ct. at 2607-08. Instead, in determining whether the Claimant is the NH’s surviving spouse, the agency considers whether all requirements for a valid marriage in Colorado were satisfied.

To be validly married in Colorado, a couple must obtain a marriage license and marriage certificate from a county clerk. Colo. Rev. Stat. §§ 14-2-105, 14-2-106. Here, the Claimant submitted a certified copy of a Marriage License and Marriage Certificate that the B~ County Clerk issued on April XX, 1975.

The couple must also solemnize their marriage, and their marriage documentation must be registered with the County Clerk. Colo. Rev. Stat. § 14-2-109. The Claimant’s Marriage License and Marriage Certificate shows that a minister solemnized the marriage on April XX, 1975, and the County Clerk registered the marriage on that same date.

The Marriage License and Marriage Certificate that the Claimant provided satisfy Colorado’s requirements for a valid marriage. See Colo. Rev. Stat. § 14-2-104 (marriage is valid if it is licensed, solemnized, and registered). Because the Claimant and the NH entered into a valid marriage under Colorado law, the State of California would also recognize their marriage as valid. See Cal. Fam. Code § 308. The agency could therefore find that the Claimant is the NH’s surviving spouse. See Social Security Act § 202(e), 216(c)(1) & (h)1)(A)(i); 20 C.F.R. § 404.335.

2. The Agency Could Find that the Claimant Satisfies the Other Requirements for Surviving Spouse Benefits and the LSDP

To receive surviving spouse benefits, the Claimant must also show that he is not married; he is at least age 60 (or age 50 and disabled); and his relationship with the NH lasted for at least nine months immediately before the NH’s death (or he meets one of the alternatives to the nine month duration requirement). See Social Security Act § 202(e); 20 C.F.R. § 404.335. These requirements are satisfied here and the agency would be legally justified in finding that the Claimant is eligible for surviving spouse benefits on the NH’s record. See Social Security Act § 202(e); 20 C.F.R. § 404.335.

To receive the LSDP, a surviving spouse must have been living in the same household as the insured at the time of death and he must apply for the LSDP within two years after the insured’s death. Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.001. Here, the Claimant was living with the NH when he died and the Claimant initially applied for the LSDP on December XX, 2014, within two years of the NH’s death on December XX, 2012. The Claimant’s initial application was therefore timely. See POMS RS 00210.005.B.5 (claimant must apply no later than the second anniversary of the insured’s death). However, the agency found the Claimant was not married to the NH and denied the application, and the Claimant did not appeal. The Claimant filed a new application on May XX, 2016, which was outside the time period to apply for the LSDP. See 20 C.F.R. § 404.391.

In denying the Claimant’s initial claim, the agency found that he did not “meet the marriage requirement.” Because it appears this determination was based on application of marriage laws later found to be unconstitutional, the agency may reopen its prior denial of the Claimant’s December XX, 2014 Title application if the following criteria are met:

1) we made our determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional;

2) we find that the application of that law was material to our determination or decision; and

3) we reopen and revise the determination or decision within the following time frames:

For claims under title II of the Social Security Act (Act), within four years of the notice of the initial determination, for good cause, under 20 CFR 404.988(b), 404.989(a)(3);

For claims under title II of the Act, at any time, if the determination or decision was fully or partially unfavorable, under 20 CFR 404.988(c)(8); SSR 17-1p, see, also, POMS GN 00210.030 (same). Here, we believe the agency can find that these criteria are met.

After reopening its prior determination on the Claimant’s initial application pursuant to SSR 17-1p, the agency may find that the Claimant satisfies the requirements to receive the LSDP: he is the NH’s surviving spouse, he was living in the same household as the NH when he died, and he applied for the LSDP within two years after the NH’s death. See Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.001. If the agency makes those findings, the Claimant would be entitled to both LSDP and surviving spouse benefits based on the December XX, 2014 application.

CONCLUSION

The agency will not apply unconstitutional State laws prohibiting same-sex marriage. Therefore, if a same-sex marriage satisfies all other elements necessary for a valid marriage at the time the marriage occurred, the agency will recognize the marriage.

The Claimant’s marriage to the NH was valid under Colorado law. Because the marriage was validly entered into in Colorado, the State of California, where the NH was domiciled when he died, would also find the marriage to be valid. The agency could therefore find that the Claimant is the NH’s surviving spouse for purposes of the Act.

The agency could also find that the Claimant is entitled to surviving spouse benefits and the LSDP based on his December XX, 2014 application.

C. PR 17-079 Surviving Spouse's Entitlement to LSDP and Underpayment Where Same-Sex Couple Married in California

Date: April 13, 2017

1. Syllabus

The number holder (NH) was domiciled in California at the time of his death; therefore, we look to the California Intestacy laws to determine if the claimant is entitled to the Lump Sum Death Payment (LSDP) on the NH’s record. The Claimant provided a certified copy of a License and Certificate of Marriage as proof of his marriage to the NH in California in November 2008. The document satisfies the California Family Code’s requirements for obtaining a marriage license, solemnizing the marriage, and registering the license with the county recorder. Therefore, the agency considers the Claimant the NH’s surviving spouse. As the NH’s surviving spouse who was living in the same household with the NH at the time of his death, the Claimant is also entitled to receive any underpayment on the NH’s record. The Claimant qualifies for the lump-sum death payment and the underpayment on the NH’s record.

2. Opinion

QUESTION

You asked whether claimant K~ (Claimant) is entitled to the lump-sum death payment and an underpayment on the record of number holder J~ (NH), where the couple entered into a same-sex marriage in California on November XX, 2008, while Proposition 8 was in effect.

SHORT ANSWER

Yes. The Claimant is the NH’s surviving spouse because the agency considers their marriage was valid under California law. The Claimant qualifies for the lump-sum death payment and the underpayment on the NH’s record.

SUMMARY OF EVIDENCE

The Claimant alleged that he married the NH in California, on November XX, 2008. He provided a certified copy of a License and Certificate of Marriage issued by the County Clerk Recorder as evidence of their marriage.

The couple lived in California.6 After the NH became sick, he and the Claimant traveled to Arizona in mid-2013 for rehabilitative therapy. According to the Claimant, they rented a place in Arizona while the NH received treatment, but the NH remained under the care of his California physicians, returned to California regularly, and remained in contact with his California employer. In addition, the NH’s State disability records and voter registration, among other records, identified California as his home, and he intended to reside to California after he got well. Before the NH could complete his treatment, he died on April XX, 2014 in Arizona.7

On May XX, 2014, the Claimant filed for the lump-sum death payment on the NH’s record. He also requested the underpayment of $14,709.00 on the NH’s record.8 An administrative law judge issued a recommended decision and sent it to the Appeals Council for consideration. The decision is pending with the Appeals Council.

LEGAL STANDARDS

A. Federal Law

The Social Security Act (Act) provides for a lump-sum death payment (LSDP) to the surviving spouse of an individual who died fully insured. Social Security Act § 202(i); 20 C.F.R.

§ 404.390; Program Operations Manual System (POMS) RS 00210.600. The agency will find a claimant to be the surviving spouse of an insured individual if the courts of the State in which the insured was domiciled at the time of death would find that the claimant was validly married to the insured when he died. Social Security Act § 216(h)(1)(A)(i). In addition to establishing he is the insured’s surviving spouse, to receive the LSDP, the claimant also must have been living in the same household as the insured at the time of death, and the claimant must apply for the LSDP within two years after the insured’s death. Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.600.

If the agency has not paid an insured individual the full amount due to him, the agency will remit the underpayment to the insured. Social Security Act § 204(a)(1)(B). However, if the insured dies before the agency pays the underpayment, the agency will distribute the underpayment to the insured’s surviving spouse, as defined in section 216(h) of the Act, if the surviving spouse was living in the same household as the insured at the time of death. Social Security Act § 204(d)(1); 20 C.F.R. § 404.503(b); POMS GN 02301.075(B).

With respect to the agency’s application of State marriage laws, we note that in Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015), the Supreme Court held State laws invalid to the extent they exclude same-sex couples from marriage on the same terms and conditions as opposite-sex couples. Pursuant to Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate Obergefell. As a result, SSA will consider State-law same-sex-marriage bans, whether based on State constitutional or statutory provisions or case law void and ineffective. SSA will apply the relevant law to the facts as usual to evaluate marital status.

B. California Law

To be validly married in California, a couple must first obtain a marriage license from a county clerk. Cal. Fam. Code §§ 350-360. After receiving a marriage license, a couple solemnizes their marriage before an officiant, who then completes the marriage license and returns it to the county recorder for registration.9 Cal. Fam. Code §§ 359(c)-(d), 420-423; see also Cal. Fam. Code § 300(a) (marriage is a civil contract between two persons which requires consent followed by issuance of a license and solemnization). Research shows that substantively similar requirements were in effect in 2008 when the Claimant married the NH.

Historically, on June 16, 2008, the California Supreme Court held that a State law banning same-sex marriages was unconstitutional. See In re Marriage Cases, 43 Cal. 4th 757 (Cal. 2008). Thereafter, voters passed Proposition 8—an amendment to the State constitution prohibiting same-sex marriage—which took effect on November 5, 2008. See Strauss v. Horton, 46 Cal.4th 364, 397-98 (Cal. 2009). On August 4, 2010, the United States District Court for the Northern District of California held that Proposition 8 was unconstitutional. Perry v. Schwarzenegger,

704 F. Supp. 2d 921, 1004 (N.D. Cal. 2010). The United States Court of Appeals for the Ninth Circuit imposed a stay pending resolution of the appeal, and later held that Proposition 8 was unconstitutional. See Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012); Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug. 16, 2010). On June 26, 2013, the United States Supreme Court held that the proponents of Proposition 8 did not have standing to appeal. See Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). Same-sex marriages in California resumed on June 26, 2013, when the Ninth Circuit lifted its stay. See Perry v. Brown, 725 F.3d 968 (9th Cir. 2013).

ANALYSIS

1. The Claimant Is the NH’s Surviving Spouse

In California, Proposition 8 purported to amend the State constitution to ban same-sex marriage effective November XX, 2008, the date the Claimant married the NH. However, pursuant to Obergefell, the agency considers State law prohibitions on same-sex marriage to be void and ineffective, regardless of when the marriage took place. See Obergefell, 135 S. Ct. 2584. Therefore, in determining whether the Claimant is the NH’s surviving spouse, the agency considers whether all requirements for a valid marriage in California were satisfied.

The Claimant provided a certified copy of a License and Certificate of Marriage evidencing his marriage to the NH on November XX, 2008, in California. On its face, the document satisfies the California Family Code’s requirements for obtaining a marriage license, solemnizing the marriage, and registering the license with the county recorder. Cal. Fam. Code §§ 350-360, 359(c)-(d), 420-423. The Claimant’s marriage to the NH is therefore valid under California law and the agency considers him the NH’s surviving spouse. See Social Security Act § 216(h)(1)(A)(i).

2. The Claimant Satisfies the Other Requirements to Receive the LSDP and the Underpayment on the NH’s record

The Claimant is the NH’s surviving spouse, was living with the NH at the time of his death, and he applied for the LSDP one month after the NH died. According to the ALJ’s recommended decision, the NH died fully insured. Therefore, the Claimant satisfies the requirements for receiving the LSDP. See Social Security Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.600.

As the NH’s surviving spouse who was living in the same household with the NH at the time of his death, the Claimant is also entitled to receive any underpayment on the NH’s record. See Social Security Act § 204(d)(1); 20 C.F.R. § 404.503(b); POMS GN 02301.075(B).

CONCLUSION

The agency will not apply unconstitutional State laws prohibiting same-sex marriage. Therefore, if a same-sex marriage satisfies all other elements necessary for a valid marriage at the time the marriage occurred, the agency will recognize the marriage. Accordingly, the agency finds Claimant’s marriage to the NH was valid under California law.

D. PR 14-120 Validity of California Same-Sex marriage certificates issued by the City and County of San Francisco between February and March 2004

Date: June 17, 2014

1. Syllabus

California does not recognize the validity of same-sex marriage certificates issued by the City and County of San Francisco between February and March 2004.

2. Opinion

QUESTION

You inquired into the validity of same-sex marriage certificates issued by the City and County of San Francisco between February and March 2004.

SHORT ANSWER

California does not recognize the validity of same-sex marriage certificates issued by the City and County of San Francisco between February and March 2004.

BACKGROUND

In 1977, California amended the Family Code to define marriage as between a man and a woman. See Cal. Fam. Code § 300 (defining marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary”). Effective March 8, 2000, California voters passed Proposition 22, adding section 308.5 to the California Family Code. See Cal. Fam. Code § 308.5: historical and statutory notes. Section 308.5 provided that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Fam. Code § 308.5.

On February 12, 2004, after receiving prompting from San Francisco Mayor Gavin, the San Francisco county clerk began issuing marriage licenses to same-sex couples. See Lockyer v. City and County of San Francisco , 33 Cal.4th 1055, 1070-71, 95 P.3d 459, 464-65 (Cal. Sup. Ct. 2004). Litigation immediately followed in the San Francisco County Superior Court. Id. at 1071. On February 27, 2004, the California Attorney General filed a writ in the California Supreme Court, requesting an immediate stay of the issuance of same-sex marriage certificates. Id. at 1072. On March 11, 2004, the California Supreme Court issued a stay, ordering San Francisco County and City officials to enforce existing marriage statutes and refrain from issuing same-sex marriage licenses or certificates. Id. at 1073. Thereafter, in an August 12, 2004 decision, the California Supreme Court held that all same-sex marriages authorized, solemnized, or registered by San Francisco City officials between February 12, 2004 and March 11, 2004 were void from their inception and have no legal effect. Id. at 1113, 1117-18. The Court declined to address the constitutional validity of California’s statutory ban on same-sex marriage. Id. at 1121.

As part of its decision, the California Supreme Court ordered the San Francisco County Clerk and County Recorder to notify every same-sex couple who received a marriage certificate between February and March 2004 that their marriages were “void from their inception and a legal nullity.” Id. at 1118-19. Further, the Court directed the County Clerk and Recorder to correct their records to “reflect the invalidity of these marriage licenses and marriages.” Id.

The California Supreme Court confronted the constitutionality of California’s ban against same-sex marriage in 2008. See In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal. Sup. Ct. 2008). The Court held that Family Code sections 300 and 308.5, prohibiting same-sex marriage, were unconstitutional. Id. at 764-65, 857 (deciding that the proper remedy was to extend the designation of marriage to same-sex couples). In a concurring opinion, Justice Kennard noted the Court’s decision not to revisit the validity of the 4,000 same-sex marriage certificates San Francisco issued in 2004 and the continuing effect of the L~ decision. Id. at 858-59 (“the parties have not asked this court to again address that issue here, and this court has not done so” and therefore “those marriage ceremonies, performed with great joy and celebration, must remain ‘empty and meaningless ... in the eyes of the law’”).

After the California Supreme Court’s ruling in In re Marriage Cases, California counties began issuing same-sex marriage certificates on June 17, 2008. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 928 (N.D. Cal. 2010). These same-sex marriage certificates were issued until November 5, 2008, the effective date of Proposition 8. Id. Proposition 8 amended the California Constitution, adding a provision that “[o]nly marriage between a Man and a Woman is valid and recognized in California.” See Cal. Const., Art. 1, § 7.5. In Strauss v. Horton, 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 between June 17, 2008 and November 5, 2008. Strauss v. Horton, 46 Cal.4th 364, 474, 207 P.3d 48, 122 (Cal. 2009); see also Program Operations Manual System (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 17, 2008 and November 4, 2008). The Court did not discuss the validity of the 4,000 same-sex marriage certificates San Francisco issued in 2004. Id.

After S~, the issue of the constitutionality of Proposition 8 was still outstanding. However, on February 7, 2012, 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. 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, “effective immediately.” Perry v. Brown, 725 F.3d 968 (9th Cir. 2013). California Staockyerte officials construed the lifting of the stay as an indication that same-sex marriage in California was legal and permitted. See 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 marriage is again legal in California. Effective immediately, county clerks shall issue marriage licenses to same-sex couples in California”) (emphasis in original). The foregoing Federal Court decisions did not address the validity of California marriage certificates issued to same-sex couples in 2004.

Current public information provided by the City and County of San Francisco indicates that the 2004 marriages remain invalid and those couples must remarry, if desired:

Q. Does the US Supreme Court’s decision on Prop 8 reinstate my 2004 San Francisco Same Sex marriage?

A. 2004 San Francisco Same Sex marriages were voided by the Court and are not valid. The US Supreme Court's decision on Prop. 8 does not reinstate those voided 2004 same sex marriages. Same sex couples are welcome to marry in San Francisco Marriage license and/or marriage ceremony appointment(s) and payment of current fees will be required.

City & County of San Francisco, Office of the Clerk, Frequently Asked Questions re: Marriage Licenses and Certificates, available at http://www.sfgov2.org/index.aspx?page=96 (last visited June 3, 2014).

ANALYSIS

Pursuant to the California Supreme Court’s ruling in L~, the more than approximately 4,000 same-sex marriages performed in the City and County of San Francisco between February 12 and March 11, 2004 were void from their inception. L~, 33 Cal. 4th at 1117. These marriages violated the law in effect at the time; namely, California Family code sections 300 and 308.5, which prohibited marriage between same-sex couples. See id. at 1071, 1075. Although the California Supreme Court eventually held that Family Code sections 300 and 308.5 were unconstitutional, the Court’s holding was not retroactive; the Court chose not to overturn its decision in L~ and validate the same-sex marriages performed in 2004. See In re Marriage Cases, 43 Cal.4th at 858-59. Accordingly, all same-sex marriage certificates issued in 2004 by the City and County of San Francisco were void from their inception and have no legal effect. See City & County of San Francisco, Office of the Clerk, Frequently Asked Questions re: Marriage Licenses and Certificates, available at http://www.sfgov2.org/index.aspx?page=96 (last visited June 3, 2014).

CONCLUSION

California same-sex marriage certificates issued by the County and City of San Francisco from February 12 to March 11, 2004 are void and without legal effect. In considering these documents, the agency should apply its existing rules for void marriage. See POMS GN 00305.125 (Void Marriages).


Footnotes:

[1]

. The agency had portions of the marriage certificate translated, and we assume this translation is accurate.

[2]

. To be eligible for spousal benefits, the applicant must also show that he: (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 aged 62 or has in his 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 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330. Based on the field office’s report of contact in the Modernized Claims System (MCS), this opinion assumes the Claimant meets these other requirements and focuses only on whether he is the NH’s spouse.

[3]

. Under Spanish law, same-sex couples wishing to marry must satisfy the same requirements as heterosexual couples. See Código Civil art. 44 (B.O.E. July 25, 1889, as amended); POMS PR 05830.342 Spain (PR 15-084, setting forth Spanish marriage requirements). This analysis assumes that the marriage between the Claimant and NH satisfied all other requirements.

[4]

. We obtained an opinion from G~, Senior Foreign Law Specialist at the Law Library of Congress, regarding the effective date of the October 26, 2005 resolution. See G~ Report for the Social Security Administration, Effective Date of Oct. 26, 2005 Resolution, LL File No. 2017-014997 (June 2017). Ms. G~ advised that the resolution became effective on the date of its issuance because it did not provide otherwise. See id.

[5]

. Since the NH’s marriage to the Claimant was valid under Spanish law regardless of the legal status of same-sex marriage in California at that time, we need not address the validity of a Spanish same-sex marriage that predated the October 26, 2005 resolution, where applicable State law did not permit such marriage at that time.

[6]

. The facts are set forth in a brief the Claimant submitted with his request for a hearing in August 2015.

[7]

. We look to California law because NH had his permanent home in California at the time of his death. 20 C.F.R. § 404.345.

[8]

. The agency’s June XX, 2015 Notice of Reconsideration, which affirmed the denial of the Claimant’s claim, states that the agency granted the NH’s disability application on April XX, 2014, with an onset date of December XX, 2012. The net amount due to him was $14,709.00.

[9]

. The document that the county clerk issues is considered a “marriage license” until it is registered with the county recor