TN 11 (09-15)
PR 05825.042 Pennsylvania
A. PR 15-172 K~ - Recognition of Same-Sex Marriage Performed in Ontario, Canada Under Pennsylvania Law
Date: July 29, 2015
The number holder (NH) and claimant married in Ontario, Canada in May 2006 and currently reside in Pennsylvania. The NH began receiving retirement benefits effective October 2010. The claimant filed an application for spouse’s benefits on the NH’s record in February 2015. The same-sex marriage was valid under Canadian law but the question remains whether Pennsylvania would recognize the foreign marriage. In 1996, Pennsylvania’s Legislature banned same-sex marriage by limiting the definition of marriage to a union between one man and one woman voiding same-sex marriages entered into in another state or foreign jurisdiction. However, on May 20, 2014, a federal district court issued a ruling in the case of Whitewood v. Wolf where “same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.” Because the NH and claimant’s marriage was valid and in effect when the Whitewood decision was issued, Pennsylvania would recognize the Canadian marriage as of May 20, 2014 (the date of the Whitewood decision).
Is the Canadian same-sex marriage of K~ (claimant) and G~, the number holder (NH), recognized under Pennsylvania law where the couple entered into a same-sex marriage in Ontario, Canada in 2006?
Yes. The Canadian same-sex marriage of the claimant and the NH would be recognized in Pennsylvania as of May 20, 2014, the date of the decision in Whitewood v. Wolf, 992 F. Supp.2d 410 (M.D. Pa. 2014).
The claimant and the NH were married on May XX, 2006 in Ontario, Canada. They currently reside in Pennsylvania. The NH is a United States citizen and meets Social Security’s fully insured status test for retirement benefits. The NH filed an application for retirement benefits on July XX, 2010 and began receiving benefits effective October 2010, when he attained age 62.
The claimant is an Australian citizen who became a lawful permanent resident of the United States on January XX, 2015. On February XX, 2015, the claimant filed an application for spouse’s benefits on the NH’s record. The claimant is currently 69 years old and does not meet Social Security’s fully insured status test to receive retirement benefits.
An individual is entitled to spousal benefits if he or she is the spouse of the insured based on a relationship described in 20 C.F.R. §§ 404.345, 404.346 (2014). See also Section 202(b), (c) of the Social Security Act (Act), 42 U.S.C. § 402(b), (c) (authorizing wife’s and husband’s insurance benefits); 20 C.F.R. § 404.330 (listing other requirements for entitlement to husband’s or wife’s benefits). An individual is entitled to spousal benefits if he or she is the spouse of the insured based on a relationship described in 20 C.F.R. §§ 404.345, 404.346 (2014). See also Section 202(b), (c) of the Act (Act), 42 U.S.C. § 402(b), (c) (authorizing wife’s and husband’s insurance benefits); 20 C.F.R. § 404.330 (listing other requirements for entitlement to husband’s or wife’s benefits).
The Act directs the agency to look to state law in determining family status. Section 216(h)(1)(A)(i) of the Act, 42 U.S.C. § 416(h)(1)(A)(i). The agency will determine whether an applicant is the spouse of an insured individual by determining “if the courts of the State in which the insured individual is domiciled at the time such applicant files the application . . . would find that such applicant and such insured individual were validly married at the time of such application.” Id. We will determine whether the marriage is valid in the state of domicile at the time of the application or the death of the insured individual, whichever is relevant. If we determine that the marriage is not valid, we must then determine whether the claimant could nonetheless be deemed the spouse of the insured individual under section 216(h)(1)(A)(ii) of the Act.
As an initial matter, the claimant and NH were validly married under the law of Ontario, Canada. Same-sex marriages have been permitted in Ontario, Canada since June 10, 2003, when the Court of Appeals for Ontario held that the common law definition of marriage as between one man and one woman violated the Canadian Charter of Rights and Freedoms. Halpern, et al. v. Attorney General of Canada, et al., (2003) 65 O.R. 3d 161 (Can. Ont. C.A.). In addition, there appears to be no Canadian residency requirement to be married in Canada. The Canadian Civil Marriage Act specifically recognizes 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 § 5(1).
In sum, same-sex marriage was legal in Ontario when the claimant and the NH married on May XX, 2006. Further, Canadian law did not require them to be Canadian residents to enter into a valid same-sex Canadian marriage. We therefore conclude that the same-sex marriage was a valid marriage under Canadian law.
Although the same-sex marriage between the claimant and the NH was valid in Ontario, Canada, the question remains whether Pennsylvania would recognize the marriage. See Cooney v. W.C.A.B., 94 A.3d 425 (Pa. Cmmw. Ct. 2014) (citing Commonwealth v. Case, 189 A.2d 756, 759-60 (Pa. Super. Ct. 1963)) (under Pennsylvania law, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into, unless the marriage is “repugnant” to Pennsylvania public policy or prohibited expressly by law.)
In 1996, Pennsylvania’s Legislature banned same-sex marriage by limiting the definition of marriage to a union between one man and one woman and voiding same-sex marriages entered into in another state or foreign jurisdiction. 20 Pa. C.S.A. §§ 1102 and 1704. As a result, while these statutory provisions were in effect, same-sex couples married in foreign jurisdictions were not considered “legal spouses” under Pennsylvania law. Id.; see In re E.M.I., 57 A.3d 1278, 1286 (Pa. Super. 2012) (holding that Pennsylvania does not yet recognize marriages between same-sex couples pursuant to sections 1102 and 1704, and that “same-sex couples are not considered legal ‘spouses’ under Pennsylvania law”).
On May 20, 2014, a federal district court issued an opinion in the case of Whitewood v. Wolf, 992 F. Supp.2d 410 (M.D. Pa. 2014), holding that sections 1102 and 1704 of Pennsylvania’s marriage laws violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution. Accordingly, the court permanently enjoined the enforcement of these laws stating, “By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.” Whitewood, 992 F. Supp. 2d at 431. Therefore, as of May 20, 2014, Pennsylvania recognizes same-sex marriages that were valid in the jurisdiction in which they were celebrated.
In this case, as discussed, the couple’s same-sex marriage was valid in Ontario, Canada, where the marriage took place. Because the marriage was valid and in effect when the Whitewood decision was issued, Pennsylvania would recognize the couple’s foreign same-sex marriage as of May 20, 2014, the date of the Whitewood decision.
For the reasons stated above, it is our opinion that the claimant’s foreign same-sex marriage would be recognized under Pennsylvania law as of May 20, 2014.
Acting Regional Chief Counsel, Region III
Tara A. Czekaj
Assistant Regional Counsel
This legal opinion is based upon evidence and information provided by the Scranton, Pennsylvania, field office.
The claimant provided a certified copy of her marriage license from the Office of the Registrar General, Ontario, Canada. See POMS GN 00305.020(A)(1) & (4).
23 Pa. C.S.A. § 1102 (West 2014) defines “marriage” as “a civil contract by which one man and one woman take each other for husband and wife.”
23 Pa. C.S.A. § 1704 (West 2014) states, “It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.”
The Commonwealth chose not to appeal that decision to the U.S. Court of Appeals for the Third Circuit.