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DOMA Still Governs at SSA

March 21, 2011

Author: Louise M. Tarantino| Catherine M. Callery (Kate)

Marriage equality may now be the law in New York, but same-sex marriages solemnized in New York after July 24th will not be recognized by the Social Security Administration (SSA). The federal Defense of Marriage Act (DOMA) continues to preclude SSA from paying some types of benefits to individuals in same-sex marriages and from offering certain benefits to employees in same-sex marriages.  Pursuant to DOMA, SSA does not recognize a same-sex spouse as a spouse for purposes of eligibility for benefits derived from the claimant’s relationship with the “number holder.”  For example, widows or widowers of same-sex partners are not able to collect survivors’ benefits, nor would an otherwise eligible same-sex spouse of a disabled worker.  See POMS GN 00305.005, available at

Although the Justice Department announced in February that it will no longer defend the constitutionality of Section 3 of the DOMA, which defines marriage for federal purposes as only between a man and a woman, SSA Commissioner Astrue notified all SSA employees that DOMA is still in effect.

Attorney General Eric Holder’s February announcement was made specifically in relation to litigation pending in the Second Circuit. The Attorney General will also instruct Justice Department attorneys to advise courts in other pending DOMA litigation that the administration’s position is “that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.”  Holder reiterated, however, “Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down.”

One of the Second Circuit cases referred to in the Attorney General’s announcement challenges the federal government's denial of marriage-related protections for Family Medical Leave Act benefits, federal laws for private pension plans and federal laws concerning state pension plans. The other case involves the IRS’s refusal to recognize the marriage of two women; the inheritance that one of the women left to the other was taxed as though the two were strangers.

How the Obama administration’s new position will affect pending litigation involving the Social Security Administration is not clear at this point.  In Gill v. Office of Personnel Management 699 F.Supp.2d 374 (D.Mass. 2010), for example, the Justice Department has indicated that it will step back from defending DOMA on appeal; it has not stated it will cease defending DOMA completely. The plaintiffs in Gill are eight same-sex couples and three individuals who, because of DOMA Section 3, were denied various federal marriage-based benefits for which they applied, including Social Security survivor benefits.  The provision was found unconstitutional by the District Court. SSA Commissioner Astrue is one of the defendants in the lawsuit, which is now on appeal to the First Circuit Court of Appeals.

The Up-Side of SSA’s Position?

Eligibility for “children’s” benefits based on disability before age 22 and dependency on a parent who is dead, disabled or retired, will not be precluded should the “adult child” enter into a same-sex marriage.  On other hand, children of the non-biological parent of a same-sex relationship may be eligible for auxiliary benefits, based at least in part on state inheritance laws. A determination must be made by the Regional Chief Counsel.  POMS GN 00306.001C.1.d.  In addition, in terms of SSI eligibility, same-sex couples will not be considered “holding out” for deeming of income purposes.  SSA’s treatment of other issues related to same-sex marriages and unions will be discussed in future editions of this journal and the Disability Law News.


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