The claimant and number holder (NH) married in British Columbia, Canada, in July 2003. Same-sex marriages have been valid in British Columbia since May 2003. The NH died in May 2014 while domiciled in Oregon. Oregon does not have a specific statute regarding recognition of marriages executed in foreign countries. As a general rule, though, Oregon looks to the law of the jurisdiction certifying the marriage to determine the marriage’s validity. We determined the couple’s Canadian marriage was lawful in the jurisdiction where it occurred and since Oregon did not have a public policy or local law prohibiting recognition of this marriage, this marriage was valid under the laws of Oregon at the time of the NH’s death. Therefore, the couple is married for the purposes of the claimant’s entitlement to widow’s benefits under Title II.

Question Presented

Should the Social Security Administration (the agency) consider a same-sex couple as married based on a 2003 Canadian ceremonial marriage?

Brief Answer

Yes. The marriage was valid in the jurisdiction where it was performed, and, at the time of the number holder’s death, the domicile state had no laws or public policy prohibiting the marriage.

 

Summary of Facts

P~ (the claimant) applied for surviving spouse’s benefits on the record of number holder, M~ (the NH). The claimant and the NH, a same-sex couple, were married on July XX, 2003, in a civil ceremony in British Columbia. The NH died on May XX, 2014. At the time of her death, the couple resided in Oregon. They never registered as domestic partners.

Analysis

Generally, an individual is entitled to widow’s or widower’s benefits if the individual (1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died; (2) files an application; (3) is at least 60 years old; (4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and (5) is not currently married. 42 U.S.C. §§ 402(e), 402(f); 20 C.F.R. § 404.335. Similarly, upon the death of a person who died as a fully or currently insured individual under the Social Security Act, a lump-sum death payment may be paid to the widow or widower of the insured who was living in the same household at the time of death. 42 U.S.C. § 402(i); 20 C.F.R. § 404.391. The Agency will determine whether a claimant is the insured’s widow or widower by looking to the laws of the state where the insured was domiciled when he or she died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. At the time of her death, the NH resided in Oregon; lacking any evidence to the contrary, we take this as her state of domicile. See District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (citations omitted) (“The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.”). Thus, the issue is whether Oregon will recognize this same-sex Canadian marriage.

Oregon does not have a specific statute regarding recognition of marriages executed in foreign countries. As a general rule, though, Oregon looks to the law of the jurisdiction certifying the marriage to determine the marriage’s validity. See Garrett v. Chapman, 449 P.2d 856, 858 (Or. 1969) (certifying a Montana marriage); see also In re Booker, 557 P.2d 248, 250 (Or. App. 1976) (recognizing common law marriages from other states). Oregon courts have considered foreign laws in determining whether to recognize a marriage alleged to have occurred in another country. See Gorman v. Gorman, 316 P.2d 543, 544-545 (Or. 1957) (finding alleged Scottish marriage not proven); Werden v. Thorpe, 867 P.2d 557, 560 (Or. Ct. App. 1994) (finding valid but voidable Mexican marriage).

This marriage appears valid where it was performed. Same-sex marriages have been valid in British Columbia since the British Columbia Court of Appeal recognized same-sex marriage in May 2003. Barbeau v. British Columbia (Attorney General), [2003] B.C.C.A., 251, para. 7. The court suspended its decision until “July 12, 2004, solely to give the federal and provincial governments time to review and revise legislation to accord with this decision.” Id. However, on July 8, 2003, the Court lifted the suspension, giving full effect to its decision. Barbeau v. British Columbia, [2003] B.C.C.A., 406. Thus, same-sex marriage became legal in British Columbia at least as of July 8, 2003. The claimant and the NH were married later that month. Accordingly, the claimant and the NH were validly married under British Columbia law since July 2003.

Oregon also follows the general rule that, except where the marriage is contrary to local law or public policy, a marriage valid where solemnized is valid everywhere. See generally Sturgis v. Sturgis, 93 P. 696, 698 (Or. 1908). In 2004, Oregon amended its constitution to state that same-sex marriages were against the policy of Oregon and its subdivisions. Oregon Const. Art. XV, § 5a. However, the U.S. District Court for the District of Oregon struck down this ban as unconstitutional on May 19, 2014. Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (D. Or. 2014). Thus, the state recognized same-sex marriages as of the date of the NH’s death, May XX, 2014. ^[1]

Since the marriage was lawful in the jurisdiction where it occurred, and since Oregon did not have a public policy or local law prohibiting recognition of this marriage, this marriage was valid under the laws of Oregon at the time of the NH’s death. Moreover, since the marriage occurred in July 2003, the couple satisfied the durational requirement for widow’s benefits.

Conclusion

The agency should consider this couple as married for the purposes of entitlement to widow’s benefits under Title II.

The claimant adopted a child, T~ in June 2004 and another child, J~ in May 2005. The claimant and number holder (NH) entered into a valid same-sex marriage in British Columbia, Canada in July 2006 and remained in a marriage until the NH’s death in November 2011. Both the claimant and the NH were living in New Jersey at the time of the NH’s death, so we look to the laws of New Jersey to determine if the claimant can collect father’s benefits on the NH’s earnings record.

Beginning February 19, 2007, New Jersey began recognizing same-sex relationships validly established under the laws of other States and foreign nations either as a civil union or domestic partnership. Since the NH and claimant’s Canadian marriage was recognized as a valid civil union and because this type of relationship confers intestacy rights, SSA recognizes the civil union as a marital relationship for the purpose of satisfying the marital relationship requirement for father’s benefits on the NH’s record.

QUESTION PRESENTED

Whether New Jersey would recognize the same-sex Canadian marriage of S~, the number holder (NH) and W~ (Claimant), for the purpose of determining whether the Claimant is entitled to father’s benefits on the record of the NH.

SHORT ANSWER

New Jersey would recognize the 2006 Canadian same-sex marriage between the Claimant and the NH as a civil union as of February 19, 2007. No actions were taken to terminate the marriage prior to the death of the NH on November XX, 2011. Under New Jersey intestacy law, a civil union partner can inherit a spouse’s share of a number holder’s personal property, and, therefore, SSA treats the civil union as a marital relationship for determining entitlement to father’s benefits. Thus, the Claimant is entitled to receive father’s benefits, assuming that the Claimant has satisfied the other statutory and regulatory requirements for such benefits.

BACKGROUND ^[2]

On June XX, 2004, the Claimant adopted T~, and on May XX, 2005, the Claimant adopted J~.

The Claimant and the NH were married on July XX, 2006, in British Columbia, Canada. The NH died on November XX, 2011, in N~ Y~, New York. Both the Claimant and the NH were living in New Jersey at the time of the NH’s death.

The Claimant applied for father’s benefits on the account of the NH on August XX, 2013, with a protective filing date of July XX, 2013.

LEGAL FRAMEWORK

Social Security Act and Regulations

To receive father’s benefits on the account of an insured wage earner, a claimant must, inter alia, have been in a valid marital-relationship for at least nine months immediately prior to the insured’s death. 42 U.S.C. §§ 402(g), 416(a) (defining “surviving spouse”), 416(g) (defining “widower”), 416(h)(1)(A); 20 C.F.R. §§ 404.339, 404.344, 404.345. SSA looks to the laws of the state where the insured had a permanent home at the time of his death to determine whether the claimant and insured were validly married. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

The Program Operations Manual System (POMS) provides that non-marital legal relationships, such as a civil union or domestic partnership, can be treated as marital relationships for the purpose of determining entitlement to benefits. POMS GN 00210.004.A. A claimant’s non-marital legal relationship will satisfy the relationship requirement for entitlement to benefits, if: (a) the relationship was valid in the place it was established, and (b) it qualifies as a marital relationship using the law of the state of the number holder’s domicile. POMS GN 00210.004.B. A non-marital legal relationship will qualify as a marital relationship if, under the intestacy law of the state of the number holder’s domicile at the time of the number holder’s death, a claimant could inherit a spouse’s share of the number holder’s personal property if the number holder died without leaving a will. POMS GN 00210.004.A, B.2.

The POMS provides that from February 19, 2007 through October 20, 2013, New Jersey recognized same-sex marriages from other states as civil unions. POMS GN 00210.004.D New Jersey; GN 00210.003.A, B.5 New Jersey.

A. Canadian Law Regarding Same-Sex Marriage

Same-sex marriages have been valid in British Columbia, Canada since July 8, 2003, when the Court of Appeals for British Columbia lifted the suspension on its May 1, 2003 decision recognizing same-sex marriage. Barbeau v. British Columbia (Attorney General), (2003) B.C.C.A. 251, para 7, available at http://www.courts.gov.bc.ca/jdb-txt/ca/03/02/2003bcca0251.htm. Furthermore, 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.” Civil Marriage Act, S.C. 2005, c. 33 (Can.), available at http://laws-lois.justice.gc.ca/eng/acts/C-31.5/page-1.html#h-1. A same-sex marriage performed in British Columbia, Canada subsequent to July 8, 2003 is therefore a valid marriage in that jurisdiction. 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.

B. New Jersey State Law Regarding Same-Sex Marriage

On December 21, 2006, the New Jersey Legislature enacted the Civil Union Act, which created civil unions for same-sex couples, effective February 19, 2007. See N.J. Stat. Ann. § 37:1-28, et. seq. (West 2015). On February 16, 2007, the New Jersey Attorney General issued an opinion stating that same-sex relationships validly established under the laws of other States and foreign nations would be recognized, beginning on February 19, 2007, either as a valid civil union or domestic partnership, but not as a same-sex marriage. Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Atty Gen. Op. 3-2007 (Feb. 16, 2007), available at http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf (Formal Opinion 3-2007). New Jersey courts held that Formal Opinion 3-2007 was entitled to judicial deference. See Quarto v. Adams, 929 A.2d 1111, 1117 (N.J. Super. Ct. App. Div. 2007).

On June 26, 2013, the U. S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act as unconstitutional and held that the Federal Government was required to provide the same rights and responsibilities to same-sex couples who were married under state law as to married couples of the opposite sex. United States v. Windsor, 570 U.S. 12 (2013). On September 27, 2013, the New Jersey courts found that civil union partners were denied equal access to federal benefits, and held that New Jersey must extend the right to civil marriage to same-sex couples. Garden State Equality v. Dow, 82 A.3d 336, 369 (N.J. Sup. Ct., 2013), stay denied 79 A.3d 479, certification granted 75 A.3d. 1157, stay denied 79 A.3d. 1036. An order accompanying the Garden State decision directed state officials to allow same-sex couples who qualified for civil marriage to marry in New Jersey beginning on October 21, 2013. See Id. As of the date of this Memorandum, no bill has been enacted into law in New Jersey regarding the retroactive recognition of same-sex marriages established under the laws of other jurisdictions.

C. New Jersey State Law Regarding Intestacy

Pursuant to the New Jersey Civil Union Act, the laws relating to intestate succession for legally-married couples “shall apply in like manner to civil union couples.” N.J. Stat. Ann. § 37:1-32 (West 2015). Under New Jersey intestacy law, a surviving spouse will inherit a spouse’s share of a decedent’s personal property if the decedent died without leaving a will. See N.J. Stat. Ann. § 3B:5-3 (West 2015). Thus, under New Jersey law, a civil union partner could inherit a spouse’s share of a decedent’s personal property if the decedent died intestate. N.J. Stat. Ann §§ 37:1-32; 3B:5-3; see POMS GN 00210.004.D (stating that New Jersey law provides spousal inheritance rights to civil union partners).

ANALYSIS

The Claimant and the NH entered into a valid same-sex marriage in British Columbia, Canada on July XX, 2006, and remained in a marriage until the NH’s death on November XX, 2011. Because the NH was domiciled in New Jersey at the time of his death, we look to the laws of New Jersey to determine if the Claimant can collect father’s benefits on the account of the NH. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

From February 19, 2007 through October 20, 2013, New Jersey recognized a valid out-of-state same-sex marriage as a civil union. POMS GN 00210.004.D New Jersey; GN 00210.003.A; B.5 New Jersey. As discussed above, the New Jersey Attorney General’s opinion provided that New Jersey would recognize same-sex marriages from foreign nations as civil unions, as of February 19, 2007. Formal Opinion 3-2007. Thus, New Jersey would have recognized the Claimant’s Canadian marriage as a civil union.

SSA recognizes a non-marital legal relationship, such as a civil union, as a marital relationship for the purpose of determining eligibility for benefits if, under the intestacy law of the state of the NH’s domicile at the time of the NH’s death, a claimant could inherit a spouse’s share of the NH’s personal property if the NH died intestate. POMS GN 00210.004.A, B. Under New Jersey law, a partner in a civil union could inherit a spouse’s share of a decedent’s personal property if the decedent died intestate, and thus, the civil union is considered a marital relationship for the purpose of determining whether the Claimant is eligible for father’s benefits. N.J. Stat. Ann §§ 37:1-32; 3B:5-3; see POMS GN 00210.004.D (stating that New Jersey law provides spousal inheritance rights to civil union partners). The Claimant and NH were in a relationship New Jersey recognized as a valid civil union for over 9 months prior to the NH’s death, and thus, assuming that the claimant has satisfied the other statutory and regulatory requirements for such benefits, he is entitled to receive father’s benefits on the NH’s account.

CONCLUSION

New Jersey recognized Claimant’s Canadian marriage to the NH as a valid civil union as of February 19, 2007. Because New Jersey civil unions confer intestacy rights, SSA recognizes a New Jersey civil union as a marital relationship for the purpose of satisfying the marital relationship requirement for father’s benefits. Thus, the Claimant is entitled to father’s benefits on the NH’s record, assuming that the Claimant has satisfied the other statutory and regulatory requirements for such benefits.

 

 

 

 

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.

QUESTION

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 C~. 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.

BACKGROUND

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.1 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.

DISCUSSION

I. 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.2 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.

II. 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).3 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.

III. Canadian Law Regarding Same-Sex Marriage4

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), [2003] 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), [2003] 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.

CONCLUSION

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.

Footnotes:

[1]

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.

[2]

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.

[3]

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.”

[4]

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.

 

 

California will recognize a same-sex marriage occurring in Canada, so long as the marriage was valid under Canadian law.

QUESTION

You asked whether Claimant and Number Holder (NH), who entered into a same-sex marriage in British Columbia, Canada, on August XX, 20XX, are validly married for determining Claimant’s entitlement to auxiliary spousal benefits based on NH’s account. The couple currently resides in California.

SHORT ANWER

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

SUMMARY OF EVIDENCE

On September XX, 20XX, Claimant filed an application for auxiliary spouse benefits on NH’s account. Claimant submitted a marriage certificate issued by the Vital Statistics Agency in British Columbia, Canada. The certificate shows that Claimant and NH married each other on August XX, 20XX, in Vancouver, Canada. The certificate also shows that both parties to the marriage were male, and born in the United States. The G~, California district office indicated that Claimant’s current address is in L~ A~, California. For purposes of this legal opinion, and based on Claimant’s current address, we will assume that Claimant and NH reside in California.

APPLICABLE LAW

Federal Law

A claimant is entitled to spousal benefits under Title II of the Act if, among other things, he or she is the spouse of an insured individual who is entitled to old-age or disability benefits. ^[3] 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 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. See Act § 216(h)(1)(A)(i); Program Operations Manual System (POMS) GN 00210.006.B.1. Our specific inquiry is whether the Canadian same-sex marriage between Claimant and NH is valid under California law.

California Law

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 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. See Act § 216(h)(1)(A)(i); Program Operations Manual System (POMS) GN 00210.006.B.1. Our specific inquiry is whether the Canadian same-sex marriage between Claimant and NH is valid under California law.

California Law

Effective March 8, 2000, California amended its Family Code to provide that a marriage is only valid between a man and a woman. Cal. Fam. Code § 308.5. However, in May 2008, the California Supreme Court held that same-sex couples had the right to marry. In Re Marriage Cases, 43 Cal. 4th 183, 183 P.3d 384 (Cal. 2008). In November 2008, California voters passed Proposition 8, which amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. Art. I, § 7.5; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). On August 4, 2010, the District Court for the Northern District of California held that Proposition 8 was unconstitutional under both the Due Process and Equal Protection Clauses of the United States Constitution. Id. at 1004. However, the Ninth Circuit granted a stay on August 16, 2010, pending resolution of an appeal. See Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug. 16, 2010). Upon review, 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 on this basis. 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, and same-sex marriages in California once again became legal. Perry v. Brown, 725 F.3d 968 (9th Cir. 2013); see also 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.^[4] California also recognizes same-sex marriages from other jurisdictions. California Family Code § 308(a) provides that a marriage contracted outside of California, and valid by the laws of the jurisdiction where contracted, would be valid in California. Cal. Fam. Code § 308(a). However, California Family Code § 308(b) provides that same-sex marriages contracted outside of California are only considered valid within California if that marriage was contracted prior to November 5, 2008, the date Proposition 8 was enacted. ^[5] Cal. Fam. Code § 308(b). On July 7, 2014, the California legislature repealed California Family Code Section 308(b). See 2014 Cal. Legis. Serv. Ch. 82 (S.B. 1306) (providing, “The bill would also delete the limitation on the validity of marriages contracted outside this state between 2 persons of the same sex.”) (effective Jan. 1, 2015).

Canadian Law

Same-sex marriages have been valid in British Columbia, Canada since May 1, 2003, when the British Columbia Court of Appeal recognized same-sex marriage but suspended its decision until “July 12, 2004, solely to give the federal and provincial governments time to review and revise legislation to accord with this decision.” Barbeau v. British Columbia (Attorney General), [2003] B.C.C.A., 251, para. 7. However, on July 8, 2003, the Court lifted the suspension, giving full effect to its decision. Barbeau v. British Columbia, [2003] B.C.C.A., 406. Thus, same-sex marriage became legal in British Columbia at least as of July 8, 2003.

Furthermore, 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. 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 California Family Code 308(a), California will recognize a same-sex marriage validly entered into outside of California. See Cal. Fam. Code § 308(a). As discussed, although section 308(b) provided that the out-of-state same-sex marriage must have occurred prior to November 5, 2008, California passed legislation on July 7, 2014, repealing section 308(b) from the Family Code. ^[6] Regardless, Claimant married NH on August 10, 2004; accordingly, California would recognize their marriage under section 308(b) even prior to the Ninth Circuit’s ruling in Perry. See Perry, 725 F.3d 968. Thus, the only outstanding issue is whether the couple’s marriage was valid under Canada law.

CONCLUSION

California 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, California would also recognize it as valid.

Since New Mexico, where the number holder and claimant are domiciled, recognizes valid same-sex marriages from other jurisdictions (states and countries), and since August 21, 2013, permits same-sex marriages within New Mexico.

QUESTION PRESENTED

You have requested an opinion ^[7] on whether New Mexico law would recognize a Canadian ceremonial same-sex marriage between C~ (the number holder) and S~. Your request indicates that S~ has filed a claim for auxiliary spousal benefits under Title II of the Social Security Act (Act) on the number holder’s account.

ANSWER

We believe that S~ and the number holder entered into a valid ceremonial same-sex marriage in Canada on July XX, 2011. New Mexico, where the number holder and S~ are domiciled, recognizes valid same-sex marriages from other jurisdictions (states and countries), and since August 21, 2013, permits same-sex marriages within New Mexico. See POMS GN 00210.003; see also Rose Griego, et al. v. Maggie Toulouse Oliver, et al., and State of New Mexico, ex rel., New Mexico Association of Counties, et al. v. Honorable Alan M. Malott, 316 P.3d 865 (N.M. 2013). As such, we believe that New Mexico would recognize the number holder and S~’s same-sex Canadian marriage as a valid out-of-state same-sex marriage. Thus, the agency may find S~ entitled to Title II auxiliary benefits as the number holder’s spouse if she meets the additional requirements for entitlement to those benefits not addressed in this opinion.

BACKGROUND

As we understand the facts, S~ and the number holder entered into a civil union in Vermont in 2000. On July XX, 2011, they also entered into a ceremonial marriage in Canada, which is evidenced by a certified copy of their British Columbia Certificate of Marriage. The Canadian marriage certificate identifies both of their sexes as female, and shows that their marriage took place in V~, Canada, on July XX, 2011. The certificate also identifies the registration date of their marriage as August XX, 2011.

S~ and the number holder are both domiciled in New Mexico, and are entitled to Title II retirement benefits since June 1996 and June 2008 respectively. On August XX, 2013, S~ filed her claim for auxiliary spousal benefits under Title II of the Act on the number holder’s account. S~’s claim is currently pending before the agency and is the subject of this request.

ANALYSIS

A claimant is entitled to spousal benefits under Title II of the Act if, among other things, she is the spouse of an insured individual who is entitled to old-age or disability benefits. ^[8] See 42 U.S.C. §§ 402(b), 416(a)(1); 20 C.F.R. § 404.330. The claimant bears the burden of proving that she is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 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. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. Here, the number holder was domiciled in New Mexico at the time S~ applied for benefits. We therefore look to New Mexico law to determine whether S~ has been in a valid marital relationship with the number holder. See POMS GN 00210.006(B)(1). Our specific inquiry focuses on whether New Mexico law will recognize the Canadian same-sex marriage between S~ and the number holder as a valid marriage.

A. New Mexico Law Will Recognize a Foreign Same-Sex Marriage if it is Valid under the Law of the Country Where it was Celebrated or Contracted

Generally, New Mexico courts have followed the principle that a marriage valid when and where celebrated is valid anywhere. See Ferret v. Ferret, 237 P.2d 59, (N.M. 1951); Leszinske v. Poole, 798 P.2d 1049, 1053 (N.M. App. 1990). New Mexico statutes have long codified this principle. See N.M. Stat. Ann. § 40-1-4 (initially enacted in 1862). Specifically, section 40-1-4 of the New Mexico marriage statutes provides:

All marriages celebrated beyond the limits of the state, which are valid according to the laws of the country wherein they were celebrated or contracted, shall be likewise valid in this state, and shall have the same force as if they had been celebrated in accordance with the laws in force in this state.

Id. We note that this statute refers to “laws of the country” where celebrated, indicating that it is intended to apply to foreign marriages, such as the one at issue here. New Mexico courts have applied this statute in determining whether to recognize out-of-state marriages from other U.S. states, as well as marriages performed in foreign countries. See e.g. Ferret v. Ferret, 237 P.2d 594, 578-579 (N.M. 1951) (applying the doctrine of comity in considering whether New Mexico would find a valid marriage entered into in Spain); Gallegos v. Wilkerson, 445 P.2d 970 (N.M. 1968) (interpreting the predecessor to section 40-1-4 and upholding a Texas common law marriage); Dion v. Rieser, 285 P.3d 678 (N.M. App. 2012) (considering section 40-1-4 and whether New Mexico should recognize an Australian judgment declaring an individual to be a de facto spouse); Leszenski v. Poole, 798 P.2d 1049 (N.M. App. 1990) (considering whether New Mexico would recognize a Costa Rican marriage).

Although neither New Mexico’s marriage statutes, nor its case law, specifically address the question of whether New Mexico will recognize a foreign same-sex marriage, New Mexico’s Attorney General issued an opinion in January 4, 2011, concluding that New Mexico law recognizes such an out-of-state marriage if it is valid under the law of the country where it is consummated. See N.M. Atty. Gen. Op. No. 11-01, 2011 WL 111243, at *3 (N.M. A.G. Jan. 4, 2011). Moreover, the New Mexico Supreme Court’s December 2013 decision holding that same-sex marriage is legal in the State clarifies even further that New Mexico will recognize valid out-of-state same-sex marriages. See Griego, 316 P.3d 865. In Griego, the New Mexico Supreme Court specifically ordered that whenever reference is made in New Mexico statutes, rules, regulations, or the common law to “marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower, or any other word, which, in context, denotes a marital relationship, the same shall apply to same-sex couples who choose to marry,” and that “civil marriage” is to be construed to mean “the voluntary union of two persons to the exclusion of all others,” and that “all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.” See Griego, 316 P.3d at 889. Given this specific order, section 40-1-4 of the New Mexico marriage statutes must be read to recognize a valid foreign marriage between persons of the same sex if the marriage is valid under the law of the country where it is celebrated or contracted. See N.M. Stat. Ann. § 40-1-4. Given the date of the New Mexico Attorney General’s opinion and the recent New Mexico Supreme Court’s Griego decision, we conclude that New Mexico has recognized valid foreign same-sex marriages at least as of January 4, 2011. ^[9] As such, New Mexico will recognize the same-sex marriage between S~ and the number holder if it was a valid marriage under Canadian law on July XX, 2011, the day it was contracted or celebrated.

B. S~’s Same-Sex Marriage to the Number Holder Was a Valid Marriage under Canadian Law on the Day it was Celebrated or Contracted

We conclude that S~’s same-sex marriage to the number holder in V~, British Columbia, Canada, was a valid same-sex marriage under Canadian law on July XX, 2011, the day it was contracted or celebrated. In a recent report provided to the agency on Canadian law on same-sex marriage, the Law Library of Congress stated that same-sex marriage became legal in Canada when the Canadian Civil Marriage Act received Royal Assent and went into force on July 20, 2005. 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) (attached). ^[10] Section 2 of the Canadian Civil Marriage Act states that “[m]arriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” Id., citing Civil Marriage Act, S.C. 2005, c. 3, § 2. The Act goes on to state that “a marriage is not void or voidable by reason only that the spouses are of the same sex.” Id., citing Civil Marriage Act, S.C. 2005, c. 3, § 4. Thus, same-sex marriage became legal in Canada at the federal level at least as of July 20, 2005.

However, even before it became legal at the federal level, nine out of thirteen Canadian provinces and territories had struck down the traditional common law definition of marriage as a violation of equality rights through a series of provincial level court decisions. 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). Of relevance here, on May 1, 2003, the British Columbia Court of Appeal recognized same-sex marriage but suspended its decision until “July 12, 2004, solely to give the federal and provincial governments time to review and revise legislation to accord with this decision.” Id., citing Barbeau v. British Columbia (Attorney General), [2003] B.C.C.A, 251, para. 7. However, on July 8, 2003, the Court lifted the suspension, giving full effect to its decision. Id., citing Barbeau v. British Columbia (Attorney General), [2003] B.C.C.A, 406. Thus, same-sex marriage became legal in British Columbia at least as of July 8, 2003.

Finally, there appears to be no Canadian residency requirement to be married in Canada. 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). 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.

Id., citing Civil Marriage Act, § 5(1).

In sum, same-sex marriage was legal both in British Columbia and at the federal level in Canada when S~ and the number-holder celebrated or contracted their marriage in V~, British Columbia on July XX, 2011. 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 on the day it was celebrated or contracted.

CONCLUSION

It is our opinion that S~ and the number holder have a valid same-sex marriage under Canadian law, and that New Mexico would recognize this foreign same-sex marriage as valid. We therefore believe that the agency may find S~ to be the number holder’s spouse for purposes of determining her entitlement to spousal benefits on the number holder’s account.