TN 14 (12-15)

PR 05825.007 Colorado

A. PR 16-014 Validity of Same Sex Marriage in Canada for Spousal Benefits in Colorado (PL15-09)

Date: October 27, 2015

1. Syllabus

The number holder (NH) and claimant married in December 2007 in Toronto, Ontario, Canada and currently reside in Colorado. The claimant filed an application for spouse’s benefits on the NH’s record in December 2014. Same-sex marriages have been valid in Ontario, Canada since June 10, 2003. Colorado law provides that marriages contracted outside of the state “that were valid at the time of the contract . . . are valid in this state.” This means Colorado will recognize a same-sex marriage celebrated in Canada if the marriage was valid under Canadian law. We determined the NH and claimant’s marriage was valid under Canadian law; therefore, the claimant is entitled to spouse’s benefits under the Act.

2. Opinion

Issue

You asked us to review whether a same sex marriage celebrated in Canada is valid in the State of Colorado for the purpose of determining spousal benefits.

Short Answer

Yes. Colorado would recognize the same-sex marriage performed in Canada because the marriage is valid under Canadian law.

Factual Background

According to the information you provided, P~ and J~ were married in December 2007 in Toronto, Ontario, Canada. See Reports of Contact, Marriage Certificate. At the time of their marriage in 2007, P~ and J~ were residing in Boulder, Colorado, and continue to reside there now. See Reports of Contact. P~ filed an application for spouse’s benefits on the record of J~ in December 2014. See Reports of Contact.

Discussion

Under the Social Security Act (Act), a claimant is entitled to benefits as the wife of an insured person who is entitled to old-age or disability benefits. See 20 C.F.R. § 404.330; 42 U.S.C. § 402(b); 42 U.S.C. § 416(h)(1)(A)(i). To be entitled to benefits under the Act, the claimant must show, among other things, that she is the insured’s wife. See id.; 20 C.F.R. § 404.345.

In order to determine the claimant’s status as a wife, we look to the laws of the State where the insured had a permanent home when the claimant applied for benefits. 20 C.F.R. § 404.345.

The Act provides that “[a]n applicant is the . . . wife . . . of a fully or currently insured individual for purposes of this subchapter if the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application.” 42 U.S.C. § 404.416(h)(1)(A)(i).

J~ was domiciled in Colorado at the time the application was filed. Thus, we must determine if, under Colorado law, the marriage was valid at the time P~ filed an application for spouse’s benefits. More specifically, we address whether the marriage (1) was valid in Canada where celebrated; and (2) is recognized as valid in Colorado. See POMS GN 00210.006(B)(2)(a).

  1. Validity of Same-Sex Marriage Under Canadian Law

    Same-sex marriages have been valid in Ontario, Canada since June 10, 2003, following a Court of Appeals decision holding that the common-law definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. See POMS PR 05825.008 (citing Halpern, et al. v. Attorney General of Canada, et al., (2003) 65 O.R. 3d 161 (Can. Ont. C.A.)). Furthermore, on July 20, 2005, the Civil Marriage Act legalized same-sex marriage throughout Canada by defining marriage as the “lawful union of two persons to the exclusion of all others.” POMS PR 05825.008 (citing Civil Marriage Act, S.C. 2005 c.3, § 2).

    The Civil Marriage Act does not have a Canadian residency requirement for a valid marriage, specifically recognizing the marriage of non-residents as “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.” POMS PR 05825.008 (citing Civil Marriage Act § 5(1)).

  2. Validity of Same-Sex Marriage Under Colorado Law

    Under Colorado’s Uniform Marriage Act, marriage was valid in the state only if it was between one man and one woman. See Colo. Rev. Stat. § 14-2-104(1)(b) (West 2014). Further, although Colorado generally recognized valid marriages from outside of the state, the statute specifically excluded same-sex marriages. See id. at § 14-2-104(2) (referencing Colo. Rev. Stat. § 14-2-112).

    In July 2014, same-sex couples challenged Colorado’s marriage laws in federal court, alleging that they were unconstitutional under the United States Constitution. See Burns v. Hickenlooper, No. 14-cv-01817-RM-KLM, 2014 WL 5312541, at *1 (D. Colo. Oct. 17, 2014). The District of Colorado agreed, issuing an injunction that barred the state from enforcing those laws as a basis to deny marriage to same-sex couples or to deny recognition of otherwise valid same-sex marriages entered in other states. Id. Colorado appealed the court’s ruling to the Tenth Circuit, and the injunction entered in Burns was stayed pending resolution of a similar case from Utah that had previously been appealed. See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014).

    The Tenth Circuit considered the Kitchen case, and affirmed the District of Utah’s ruling that Utah’s laws barring marriage between same-sex couples were unconstitutional under the United States Constitution. See Kitchen, 755 F.3d 1193, 1208-09. Utah appealed the Tenth Circuit’s decision to the United States Supreme Court, but the Supreme Court denied certiorari review in October 2014, allowing the Tenth Circuit’s decision to stand. See Herbert v. Kitchen, 135 S.Ct. 265 (2014). Based on the Supreme Court’s denial of certiorari review, the Tenth Circuit issued an order lifting the stay in Kitchen and allowing same-sex marriages to proceed in Utah. See Kitchen v. Herbert, No. 13-4178, 2014 WL 4960471 at *1 (10th Cir. Oct. 6, 2014).

    In light of the final decision in Kitchen, the District of Colorado entered a final order in Burns concluding that Colorado’s laws impermissibly violated same-sex couples’ fundamental right to marry under the United States Constitution. 2014 WL 5312541, at *1. The Court permanently enjoined Colorado from enforcing or applying Colo. Rev. Stat. § 14-2-104(1)(b) and Colo. Rev. Stat. 14-2-104(2) as a basis to deny marriage to same-sex couples, or to deny recognition of otherwise valid same-sex marriages entered in other states. Id. at *2. See also POMS GN 00210.003 (Colorado recognizes same-sex marriages from other states as of October 7, 2014).

  3. Analysis

    Pursuant to the Canadian Civil Marriage Act and Ontario law, same-sex marriage was legal in Canada when J~ and P~ were married in December 2007. See POMS PR 05825.008 (citing Halpern, et al. v. Attorney General of Canada, et al., (2003) 65 O.R. 3d 161 (Can. Ont. C.A.); Civil Marriage Act, S.C. 2005 c.3, § 2, §5(1)). Although the couple was domiciled in Colorado at the time of their marriage, Canadian law did not require them to be Canadian residents in order for the marriage to be valid.

    Colorado law provides that marriages contracted outside of the state “that were valid at the time of the contract . . . are valid in this state.” Colo. Rev. Stat. § 14-2-112 (West 2014). The decision in Burns invalidated the specific portion of Colorado law which denied recognition for same-sex marriages from outside of the state of Colorado. See Burns, 2014 WL 5312541, at *2 (citing Colo. Rev. Stat. § 14-2-104(2)). Thus, following Burns, Colorado will recognize J~ and P~’s valid Canadian marriage as of December 2014, when P~ filed her application.

Conclusion

For the reasons stated above, Colorado will recognize a same-sex marriage celebrated in Canada if the marriage was valid under Canadian law. J~ and P~’s marriage was valid under Canadian law, therefore, P~ is considered a “wife” for purposes of determining her entitlement to spousal benefits under the Act. See POMS GN 00305.020 (providing that a certified copy or statement as to a public record of marriage is preferred proof of marriage, and noting foreign records are acceptable).

John J. Lee, Regional Chief Counsel

Region VIII, Denver

Keeya Jeffrey, Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505825007
PR 05825.007 - Colorado - 12/15/2015
Batch run: 12/15/2015
Rev:12/15/2015