TN 4 (04-15)

PR 05825.004 Arizona

A. PR 15-092 OPINION: Windsor Claim – OGC Opinion Request: Foreign Marriage: Glendale, AZ FO Arizona’s Recognition of Canadian Same-Sex Marriage G~ (SSN ~): Claimant D~ (SSN ~): Number Holder

DATE: March 4, 2015

1. SYLLABUS

Arizona 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, Arizona also recognizes it as valid. Since the marriage is valid under the law of the domicile state, the agency should recognize the marriage for spousal benefit purposes.1

2. OPINION

QUESTION

You asked whether Claimant and Number Holder (NH), who entered into a same-sex marriage in Ontario, Canada, in August 2012, are validly married for determining Claimant’s entitlement to spousal benefits on NH’s record. The couple currently resides in Arizona.

SHORT ANWER

Yes. Arizona currently recognizes same-sex marriages validly entered in other jurisdictions. The marriage between Claimant and NH was valid under Canadian law; therefore, assuming Claimant meets all other requirements, he is entitled to benefits as NH’s spouse under the Social Security Act.

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

SUMMARY OF EVIDENCE

In October 2014, Claimant filed an application for spouse’s benefits on NH’s account. Claimant submitted a marriage certificate issued by the Office of the Registrar General in Ontario, Canada. The certificate shows that Claimant and NH married each other in August 2012 in Kitchener, Ontario. The certificate also reflects that Claimant and NH were residents of Ontario, Canada at the time of their marriage. The Glendale, Arizona field office indicated that the couple currently resides in Arizona.

APPLICABLE LAW

Federal Law

A claimant is entitled to spousal benefits under Title II of the Social Security Act (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 3 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 or when the insured died. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; Program Operations Manual System (POMS) GN 00210.006.B.1.

Here, our specific inquiry is whether the Canadian same-sex marriage between Claimant and NH is valid under Arizona law.

Arizona Law

Historically, Arizona laws prohibited same-sex marriage. Article 30, Section 1, of the Arizona Constitution provided only a marriage between “one man and one woman” is valid or recognized as a marriage. Ariz. Const. Art. 30, § 1; see also Ariz. Rev. Stat. § 25-101(C) (prohibiting same-sex marriage), § 25-125(A) (defining marriage as between a male and female person).

However, on October 7, 2014, the United States Court of Appeals for the Ninth Circuit ruled invalid the laws of Nevada and Idaho that prohibited same-sex marriages because those laws denied same-sex couples equal protection of the law under the Fourteenth Amendment. Latta v. Otter, 771 F.3d 456, (9th Cir. 2014); stay denied, 135 S.Ct. 345 (U.S. Oct. 10, 2014).

On October 17, 2014, following the precedent set by the Ninth Circuit, the Federal District Court for the District of Arizona struck down Arizona’s ban on same-sex marriage in two separate rulings. See Majors v. Horne, 14 F. Supp. 3d 1313, 1315 (D. Ariz. 2014); Connolly v. Jeanes, No. 2:14-cv-00024 JWS, 2014 WL 5320642, at *1 (D. Ariz. Oct. 17, 2014). The District Court held both Article 30, Section 1, of the Arizona Constitution and Arizona Revised Statutes §§ 25101(c), 25-125(A) unconstitutional under the Equal Protection Clause of Fourteenth Amendment to the United States Constitution and permanently enjoined the enforcement of these state laws. Id.; see also Attorney General Will Not Appeal Same-Sex Marriage Ruling, press release from the Office of Arizona Attorney General (Oct. 17, 2014), available at https://www.azag.gov/press-release/attorney-general-tom-horne-will-not-appeal-same-sex-marriage-ruling (“I am issuing a letter today to the 15 county clerks of court with the directive that based on today’s decision by the Federal District Court, they can issue licenses for same sex marriages immediately.”).

Arizona recognizes the validity of marriages entered outside of Arizona if such marriages were valid under the laws of the jurisdiction where contracted. Ariz. Rev. Stat. § 25-112(A); see also Beatie v. Beatie, 235 Ariz. 427, 333 P.3d 754, 760 (Ariz. Ct. App. 2014) (concluding Family Court erred by not recognizing Hawaii marriage of transgender person in part because “Arizona has enacted an explicit extension of the federal Full Faith and Credit Clause to marriages entered into in other states”) (citing Ariz. Rev. Stat. § 25-112(A)); Donlann v. Macgurn, 203 Ariz. 380, 383, 55 P.3d 74, 77 (Ariz. Ct. App. 2002) (recognizing principle that “the validity of the marriage is generally determined by the law of the place of marriage” and approving lower court’s consideration of Mexican marriage law). However, Arizona will not recognize the validity of marriages entered in other jurisdictions that are “void and prohibited” under Arizona Revised Statute § 25-101. Id.; see also Ariz. Rev. Stat. § 25-101(C) (a marriage between persons of the same sex is void and prohibited).

With the District Court’s decisions in Majors and Connolly, and the permanent enjoinder of enforcement of Arizona Revised Statute § 25-101(C), same-sex marriages are no longer “void and prohibited.” See Majors, 14 F. Supp. 3d at 1315; Connolly, 2014 WL 5320642 at *1. Thus, although we have not found any specific authority regarding same-sex marriages celebrated in other jurisdictions, based on these general principles it follows that Arizona will now recognize as valid same-sex marriages entered in other jurisdictions.

Canadian Law 4 On June 10, 2003, Ontario became the first Canadian province to recognize same-sex marriage. See Halpern et al. v. Attorney General of Canada et al. , [2003] 65 O.R. 3d 161 (Ont. C.A.), http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm. The Ontario Court of Appeal held that the common law definition of marriage, providing for the union of one man and one woman, violated the Canadian Charter of Rights and Freedoms. Id. at para. 142. On June 11, 2003, Ontario municipalities began issuing marriage licenses to same-sex couples. See Marriage Licences, CITY OF OTTAWA, http://ottawa.ca/en/residents/laws-licenses-and-permits/birth-marriage-and-death/marriage-licences (last visited Dec. 2, 2014).

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.).

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 Arizona Revised Statute § 25-112(A), Arizona will recognize a marriage validly entered into outside of Arizona, so long as they are not void and prohibited under § 25-101. See Ariz. Rev. Stat. § 25-112(A). As discussed above, although § 25-101(C) previously categorized same-sex marriages as void and prohibited, the District Court permanently enjoined the State from applying § 25101(C). See Majors, 14 F. Supp. 3d at 1315; Connolly, 2014 WL 5320642 at *1. Thus, at the time Claimant filed his application for spousal benefits (October 27, 2014), Arizona recognized same-sex marriages contracted outside of Arizona so long as the marriages were valid under the laws of the jurisdiction where contracted. See 20 C.F.R. § 404.345 (looking at whether the claimant and the insured were validly married under State law at the time the claimant applied for benefits).

Here, Claimant and NH were married in August 2012 in Ontario, Canada. At that time, same-sex marriages were legal in Canada pursuant to the Civil Marriage Act. Therefore, the marriage between NH and Claimant was valid under Canadian law and will be recognized as valid in Arizona.

CONCLUSION

Arizona 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, Arizona also recognizes it as valid. Since the marriage is valid under the law of the domicile state, the agency should recognize the marriage for spousal benefit purposes. 5


Footnotes:

[1]

We offer no opinion about whether any other entitlement factor is met.

[2]

To be entitled to 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]

Absent a valid marital relationship, the relationship requirement will also be met for purposes of entitlement if the claimant can inherit from the insured to the same extent as a spouse under State intestacy law. 20 C.F.R. § 404.345.

[4]

We relied on the information provided by the Law Library of Congress in summarizing and applying Canadian law. See Law Library of Congress, Report for US Social Security Administration, Canada: Legal Recognition of Same-Sex Marriage, LL File No. 2014-010685 (May 2014).

[5]

We offer no opinion about whether any other entitlement factor is met.


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PR 05825.004 - Arizona - 04/20/2015
Batch run: 04/20/2015
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