TN 12 (09-15)
PR 05825.016 Illinois
A. PR 15-184 MOS-IL—Same-Sex Marriage in Canada
Date: August 19, 2015
The number holder (NH) and claimant were married in September 2004 in British Columbia, Canada. The NH is domiciled in Illinois and began receiving benefits in September 2013. The claimant filed for spouse’s benefits on the NH’s earnings record in October 2013 and the claim is still pending. Illinois began recognizing same-sex marriage and same-sex marriages entered into in other jurisdictions as valid since June 1, 2014.
Illinois courts have held “the general rule of law that a marriage valid where it is celebrated is valid everywhere….” Same-sex marriage was legalized across Canada on July 20, 2005, and on July 26, 2013, the Canadian Parliament amended the Civil Marriage Act, specifically recognizing marriages of non-resident persons retroactively. This means the NH and claimant’s same-sex marriage was legal in Canada when they married in September 2004. Since the marriage was valid under Canadian law, the marriage is also recognized as valid in Illinois; therefore, the claimant is entitled to spouse’s benefits on the NH’s account.
You asked whether the claimant, H~, is entitled to benefits as the spouse of the number holder (NH), T~ based on his same-sex marriage to the NH in Canada and the NH’s domicile in Chicago. For the reasons discussed below, we conclude that the claimant’s Canadian marriage to the NH is valid under both Canadian and Illinois law. Therefore, you may find that the claimant is entitled to spouse’s benefits on the NH’s account.
The claimant and the NH were married on September XX, 2004, in British Columbia, Canada. The evidence submitted to OGC includes a copy of their marriage certificate from the Vital Statistics Agency of British Columbia, Canada. They are still married and live in Illinois.
The NH began receiving benefits in March 2014, with retroactive payments for when the NH first became entitled to benefits in September 2013. The claimant filed for spouse’s benefits on the NH’s record on October XX, 2013 and his claim is still pending. The NH was domiciled in Illinois at the time the claimant’s application was filed.
Social Security Act and Regulations
Under Title II of the Social Security Act (the Act), a claimant may be entitled to benefits as the wife or husband of an insured individual who is entitled to old-age or disability benefits. See Section 202(b)(1), (c)(1) of the Act; see also 20 C.F.R. § 404.330. To establish his relationship as the insured’s spouse, the claimant must show that the courts of the state in which the insured is domiciled at the time the application was filed would find that the claimant and the insured were validly married at the time the application was filed or while the claim is pending a final determination. See Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345; POMS GN 00210.002B, RS 00202.001A.1.
Following the U.S. Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the agency is no longer prohibited from recognizing same-sex marriages for purposes of determining benefits. See POMS GN 00210.001. As such, all claims filed on or after June 26, 2013, or that were pending final determinations at the time of the decision will be subject to the Windsor instructions in the POMS at GN 00210.000. See id. As relevant to this case, where a claimant entered into a same-sex marriage in a foreign jurisdiction, the agency must determine whether the foreign marriage is recognized under state law criteria of the NH’s domicile. See POMS GN 00210.006B.2.a. Specifically, a claimant is considered married for Title II benefits purposes if the foreign same-sex marriage: (1) would be recognized by the courts of the state of the NH’s domicile as valid, and (2) is valid in the jurisdiction it was celebrated in. See id.
Here, the claimant and the NH were married in British Columbia, Canada. The NH was domiciled in Illinois at the time of the claimant’s application for spouse’s benefits and continues to live in Illinois. Thus, we look to Illinois and Canadian law to determine whether the claimant and the NH are validly married for purposes of entitlement to spouse’s benefits under Title II of the Act.
Illinois Law Regarding Same-Sex Marriage
Illinois began recognizing same-sex marriage on June 1, 2014 through its Religious Freedom and Marriage Act. 2013 Ill. Legis. Serv. P.A. 98-597 (S.B. 10) (West) (codified at 750 Ill. Comp. Stat. 80/1 et seq.) (2014)). The amendment removed prior language indicating that marriage could only be “licensed, solemnized and registered” between “a man and a woman” and replaced it with the gender-neutral phrase “2 persons.” Id., Section 905 (modifying former 750 Ill. Comp. Stat. 5/201). The 2013 amendment also deleted a provision that prohibited marriages between persons of the same sex. Id., Section 905 (deleting former 750 Ill. Comp. Stat. 5/212(a)(5)). It further provided that, for purposes of implementing the rights and responsibilities of spouses in a civil marriage between persons of the same sex, “[p]arties to a marriage shall be included in any definition or use of terms such as ‘spouse’, ‘family’, ‘immediate family’, ‘dependent’, ‘next of kin’, ‘wife’, ‘husband’, ‘bride’, ‘groom’, ‘wedlock’, and other terms that refer to or denote the spousal relationship, as those terms are used throughout the law, regardless of whether the parties to a marriage are of the same sex or different sexes.” Id. § 10(c).
Illinois also recognizes lawful marriages between same-sex couples solemnized in other jurisdictions. The Illinois Supreme Court has long held “the general rule of law that a marriage valid where it is celebrated is valid everywhere, [except for] marriages which are contrary to the law of nature . . . and those which are declared by positive law to have no validity.” Wilson v. Cook, 256 Ill. 460, 463, 100 N.E. 222, 222 (1912). Prior to the legalization of same-sex marriage, Illinois’ recognized civil unions between two individuals of the same-sex and expressly declared that same-sex marriages that were recognized by another state or foreign jurisdiction would be treated as civil unions. 2013 Ill. Legis. Serv. P.A. 98-597 (S.B. 10), Section 905 (West) (see former 750 Ill. Comp. Stat. 75/60). The 2013 amendment modified this provision to recognize same-sex marriages from foreign jurisdictions as valid Illinois marriages. Id.
Thus, since June 1, 2014, Illinois has recognized same-sex marriages entered into in other jurisdictions as valid. Accordingly, to determine whether Illinois would recognize the same-sex marriage between the claimant and the NH as valid, we must determine whether the marriage was valid in British Columbia, Canada at the time it was entered into.
Canadian Law Regarding Same-Sex Marriage
On May 1, 2003, the Court of Appeal for British Columbia, Canada, held that the common law bar to same-sex marriage violated the Canadian Charter of Rights and Freedoms. Barbeau v. British Columbia (Attorney General),  B.C.C.A. 251, para. 7, available at http://www.courts.gov.bc.ca/jdb-txt/ca/03/02/2003bcca0251.htm. The court stated that the common law definition of marriage should be reformulated to “the lawful union of two persons to the exclusion of all others,” but suspended the remedies until July 2004, “solely to give the federal and provincial governments time to review and revise legislation in accord with [its] decision.” Id. On July 8, 2003, however, the court lifted the suspension and gave the reformulation of the common law definition of marriage full effect as of that date. Barbeau v. British Columbia (Attorney General),  B.C.C.A. 406, available at http://www.courts.gov.bc.ca/Jdb-txt/CA/03/04/2003BCCA0406.htm.
Subsequently, on July 20, 2005, the Civil Marriage Act legalized same-sex marriage 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. 33 (Can.), available at http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2005_33/FullText.html. In addition, on June 26, 2013, the Canadian Parliament amended the Civil Marriage Act, specifically recognizing marriages of non-resident persons retroactively. See Civil Marriage of Non-Residents Act, S.C. 2013, c. 30 (Can.), available at http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2013_30/FullText.html.
In sum, same-sex marriage was legal in Canada when the claimant and the NH married in British Columbia in September 2004. Further, Canadian law did not require the couple to be Canadian residents to enter into a valid same-sex Canadian marriage. We therefore conclude that their same-sex marriage was valid under Canadian law. Accordingly, their marriage is also recognized as valid in Illinois.
For the reasons discussed above, we conclude that the claimant’s marriage to the NH is valid under both Canadian and Illinois law. Assuming that the claimant has satisfied other statutory and regulatory requirements, he is entitled to spouse’s benefits on the NH’s account.
Acting Regional Chief Counsel, Region V
Assistant Regional Counsel
The preferred proof of a marriage performed in a foreign country is a church or civil record issued pursuant to the foreign law which shows the claimant and the NH as married. See POMS GN 00305.020A.4. The marriage document submitted to OGC appears to satisfy this evidentiary requirement.
To be entitled to spouse’s benefits, the claimant must also meet all other requirements of section 202(b)(1) or (c)(1) of the Act. See also 20 C.F.R. § 404.330.
The former provision reads: “A marriage between persons of the same sex, a civil union, or a substantially similar legal relationship other than common law marriage, legally entered into in another jurisdiction, shall be recognized in Illinois as a civil union.”
Our discussion of the law of British Columbia, Canada, is based in part on a report provided by the Law Library of Congress to the agency.