PR 05825: State Recognition of Canadian Same-Sex Marriages
TN 16 (01-16)
A. PR 16-027 Validity of Canadian Same-sex Marriage for Entitlement to Widower’s Insurance Benefits and Lump-Sum Death Payment – Florida
Date: November 10, 2015
1. Syllabus
The claimant and number holder (NH) married in Ontario, Canada in April 2007. Canada has recognized same-sex marriages as of July 20, 2005. The NH died June 2014 while domiciled in Florida and the claimant filed for the lump-sum death payment (LSDP) and widower’s benefits on the NH’s record in January 2015. Since the NH died in Florida, we look to Florida law to determine if the claimant and NH were validly married.
Florida has a history of recognizing valid foreign marriages and generally approves the act of marriage, regardless of where it occurs and presumes a marriage is valid. The claimant provided a Canadian marriage certificate and because the certificate and other information support the conclusion the marriage was valid in Canada, Florida would presume the marriage is valid under Canadian law. Therefore, we conclude the claimant was validly married to the NH under Florida law for purposes of determining entitlement to Title II benefits on the NH’s earnings record.
2. Opinion
QUESTION
You asked whether the number holder (NH) and Claimant, who entered into a same-sex marriage in Canada, were validly married under Florida law for purposes of determining Claimant’s entitlement to Title II benefits as NH’s widower.
OPINION
Claimant was validly married to NH under Florida law for purposes of determining Claimant’s entitlement to Title II benefits as NH’s widower.
BACKGROUND
According to the information provided, J~ (Claimant) married R~ (NH) in Niagara Falls, Ontario, Canada on April XX, 2007. Claimant is and NH was male. NH’s death certificate indicates he died on June XX, 2014, while domiciled in Pompano Beach, Florida. On January XX, 2015, Claimant applied for WIB and all other insurance benefits for which he was eligible under Title II of the Social Security Act (Act) on NH’s earnings record.
DISCUSSION
A claimant may be eligible for WIB if the claimant is the widower of an individual who died fully insured. See Act § 202(f)(1); 20 C.F.R. § 404.335(a) (2015).1 A claimant may be eligible for the lump-sum death payment if the claimant is the widower of an individual who died a fully or currently insured individual. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391. A claimant may qualify as the widower of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find the claimant and insured individual were validly married when the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; Program Operations Manual System (POMS) GN 00305.001(A)(2)(a); see also POMS GN 00210.006(B) (stating Regional Chief Counsel opinions regarding validity of foreign same-sex marriages look to laws of the State of the number holder’s domicile and must address whether marriage would be recognized as valid by the courts of the State of the number holder’s domicile). NH’s death certificate indicates he was a resident of Florida when he died. Therefore, we look to Florida law to determine if Claimant and NH were validly married.
Florida generally approves of the act of marriage, regardless of where it occurs, and presumes a marriage is valid. See Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541, 542 (Fla. Dist. Ct. App. 1990); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984). In addition, “[i]t is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage.” Guelman, 453 So. 2d at 1160. Furthermore, “all presumptions necessary to make a marriage valid, including the capacity to contract, attach upon proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married.” Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991).
Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred. See Johnson, 571 So. 2d at 542; see also POMS GN 00305.005(B)(1) (“The law of the place where a marriage occurred ordinarily determines the validity of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid in other places.”). “The law in Florida on this point is consistent with the general rule recognized in other jurisdictions that the validity of a marriage is to be determined by the law of the jurisdiction where the marriage was entered into.” Anderson, 577 So. 2d at 660.
Florida previously denied recognition to same-sex marriages due to statutory and State Constitutional provisions, but began recognizing same-sex marriages on January 5, 2015. See POMS GN 00210.003(A); POMS PR 05825.011. Additionally, on June 26, 2015, the U.S. Supreme Court held that same-sex couples may exercise the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges, 576 U.S. —, 135 S. Ct. 2584, 2604-05 (2015). The Court held State laws invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id. 135 S. Ct. at 2605. The Court also reasoned that having required all States to marry same-sex couples, “[i]t follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Id. at 2607-08.
In this case, Claimant provided a Canadian marriage certificate dated April XX, 2007. As of July 20, 2005, Canada recognized the validity of same-sex marriages. See The Law Library of Congress, Report for U.S. Soc. Sec. Admin. LL File No. 2014-010685, Canada: Legal Recognition of Marriage (2014). Because the certificate and other information support the conclusion the marriage was valid in Canada, Florida would presume the marriage is valid under Canadian law. See Anderson, 577 So. 2d at 660; Guelman, 453 So. 2d at 1160. Although Obergefell did not specifically address whether States must recognize same-sex marriages performed in other countries, Florida has a history of recognizing valid foreign marriages. See, e.g., Guelman, 453 So. 2d at 1160 (recognizing Bolivian marriage).
Obergefell also did not specifically address whether States must recognize same-sex marriages where one of the parties died before the Court rendered its decision. However, on September 10, 2015, the Social Security Administration (SSA) issued Emergency Message 15029, “Obergefell Supreme Court Decision–When to Recognize Same-sex Marriages in Title II Survivor and Lump-sum Death Payment (LSDP) Claims - One-Time-Only Instructions” (EM). The EM applies Obergefell and provides that, if a marriage was valid where celebrated in a State or U.S. territory, then SSA will recognize the marriage as valid as of the date of the marriage regardless of whether the number holder died domiciled in a State that recognized same-sex marriage when the number holder died. The EM directs this conclusion when determining whether a claimant is a same-sex spouse for Title II benefit purposes, that is, for determining whether under section 216(h)(1)(A)(i) of the Act and 20 C.F.R. § 404.345 the courts of the State where the number holder died (Florida in this case) would find the claimant and the number holder were married when the number holder died. Consequently, if the marriage between Claimant and NH had occurred in another State in the United States and the marriage was valid in that State, we would conclude that Florida courts would consider the marriage to be valid even if NH had died before Florida began recognizing same-sex marriages.
The EM does not specifically address marriages performed outside the United States and its territories. Nevertheless, Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred, regardless of whether the marriage was performed in another State or in another country. See, e.g., Guelman, 453 So. 2d at 1160 (sustaining trial court’s interpretation of foreign law and presuming Bolivian marriage valid). Because, under the EM, we would conclude Florida courts would recognize a marriage like that between Claimant and NH if the marriage was validly performed in another State, we conclude a Florida court would find Claimant and NH are married in this case because Florida does not treat marriages performed in other States and marriages performed in other countries differently in ways that would result in a different outcome here.
However, we caution that neither the Supreme Court of Florida nor any of the Florida District Courts of Appeal have spoken on these issues and this area of law in Florida is in significant flux. Consequently, our conclusions may change as Florida law evolves on these issues.
CONCLUSION
Claimant was validly married to NH under Florida law for purposes of determining Claimant’s entitlement to Title II benefits on NH’s earnings record.
Sincerely,
Mary Ann Sloan
Regional Chief Counsel
By:
Laura Verduci
Assistant Regional Counsel
B. PR 15-131 Validity of Canadian Same-sex Marriage for Entitlement to Husband’s or Wife’s Insurance Benefits – Florida
DATE: February 17, 2015
1. Syllabus
Florida courts generally determine the validity of a marriage based on the laws of the place where the marriage occurred. The claimant and the number holder (NH) married in Ontario, Canada in September 2003 and domiciled in Florida at the time the claimant filed an application for spouse’s benefits. Since Florida recognizes valid marriages from foreign jurisdictions, the couple is considered validly married under Florida law for purposes of determining the claimant’s entitlement to benefits as the NH’s spouse.
2. OPINION
I. Question
You asked whether the number holder (NH) and Claimant, who entered into a same-sex marriage in Canada, were validly married under Florida law for purposes of determining Claimant’s entitlement to Title II insurance benefits as the NH’s spouse.
II. Short Answer
Claimant is validly married to NH under Florida law for determining Claimant’s entitlement to benefits as the NH’s spouse.
III. Background
According to the information provided, Claimant married NH in September 2003, in Ontario, Canada. Both the Claimant and NH are male. NH currently receives old-age insurance benefits. In January 2014, Claimant applied for husband’s Insurance benefits (HIB) on NH’s earnings record. Claimant and NH lived in North Palm Beach, Florida, when Claimant filed his HIB application.
IV. Discussion
A claimant may be eligible for HIB or wife’s insurance benefits if he or she is the husband or wife of an individual entitled to old-age insurance benefits. See Social Security Act (Act) § 202(b)(1),(c)(1); 20 C.F.R. § 404.330(a) (2014).2 A claimant may qualify as the husband or wife of a living insured individual if the claimant is validly married to the insured individual under the laws of the state where the insured individual was domiciled at the time of the claimant’s application. See Act § 216(b), (f), (h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; see also Program Operations Manual System (POMS) GN 00210.006(B) (stating SSA opinions regarding validity of foreign same-sex marriages look to laws of the state of NH’s domicile and must address whether marriage would be recognized as valid by the courts of the state of NH’s domicile). NH lived in Florida when Claimant applied for HIB on NH’s earnings record. Therefore, we look to Florida law to determine if Claimant and NH are validly married.
Florida generally approves of the act of marriage, regardless of where it is contracted, and presumes a marriage is valid. See Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541, 542 (Fla. Dist. Ct. App. 1990); Guelman v. De Guelman, 453 So. 2d 1159, 1160 (Fla. Dist. Ct. App. 1984). In addition, “[i]t is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage.” Guelman, 453 So. 2d at 1160. Furthermore, “all presumptions necessary to make a marriage valid, including the capacity to contract, attach upon proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married.” Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991).
Florida courts generally determine the validity of a marriage based on the laws of the place where the purported marriage occurred. See Johnson, 571 So. 2d at 542; see also POMS GN 00305.005(B)(1) (“The law of the place where a marriage occurred ordinarily determines the validity of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid in other places.”). “The law in Florida on this point is consistent with the general rule recognized in other jurisdictions that the validity of a marriage is to be determined by the law of the jurisdiction where the marriage was entered into.” Anderson, 577 So. 2d at 660.
Nevertheless, a Florida court “need not recognize as valid a marriage which is valid in the jurisdiction where consummated where recognition would affront the public policy of the forum state.” Id. at 660 n.3; see also POMS GN 00305.005(B)(1) (“even though the marriage was valid where it was celebrated, it may be void in the state of the worker’s domicile if it violates the law or public policy of that state”). Similarly, states are not required to give full faith and credit to public acts (e.g., marriages) of another state if the public act is contrary to the public policy of the forum State.3 See Nevada v. Hall, 440 U.S. 410, 421-24 (1979); Wilson v. Ake, 354 F. Supp. 2d 1298, 1303-04 (M.D. Fla. 2005).
The Florida Constitution, Article I, Section 27, states: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.” Similarly, a Florida statute states, “[f]or the purposes of interpreting any state statute or rule, the term ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the term ‘spouse’ applies only to a member of such a union.” Fla. Stat. Ann. § 741.212(3) (West 2014). Florida statutes state that Florida does not recognize marriages “between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, . . . for any purpose.” Fla. Stat. Ann. § 741.212(1). Florida statutes also provide that it “may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other place or location” respecting a marriage between persons of the same sex. Fla. Stat. Ann. § 741.212(2).
Despite Florida’s statutes and constitutional provisions prohibiting same-sex marriage, two Florida circuit courts recently held Florida’s same-sex marriage ban violates the Federal Constitution’s guarantees of due process and/or equal protection. See Pareto v. Ruvin, No. 14-1661 CA 24 (Fla. Cir. Ct. Jul. 25, 2014); Huntsman v. Heavilin, No. 2014-CA-305-K (Fla. Cir. Ct. Jul. 17, 2014). The State of Florida has appealed Pareto and Huntsman to Florida’s Third District Court of Appeal. See State v. Pareto, No. 3D14-1816 (Fla. Dist. Ct. App. filed Jul. 28, 2014); State v. Huntsman, No. 3D14-1783 (Fla. Dist. Ct. App. filed Jul. 23, 2014). The circuit courts stayed their rulings pending appeal. See Pareto, No. 3D14-1816; Emergency Motion to Lift the Stay, Huntsman, No. 2014-CA-305-K (filed Jul. 21, 2014).
Additionally, a federal district court recently held Florida’s statutes and constitutional provisions denying the recognition of same-sex marriages violate the Federal Constitution’s guarantee of due process and equal protection under the law. See Brenner v. Scott, 999 F. Supp. 2d 1278, 1290 (N.D. Fla. 2014). The Brenner court’s preliminary injunction directs the Secretary of the Florida Department of Management Services and the Florida Surgeon General to “take no steps to enforce or apply” Florida’s constitutional or statutory provisions prohibiting the recognition or licensing of same-sex marriages.4 Id. at 1293. The Brenner court stayed its injunction, but the stay expired on January 5, 2015, and both the United States Supreme Court and the United States Court of Appeals for the Eleventh Circuit have denied defendants’ requests to extend the stay.5 See Brenner, No. 4:14-cv-00107-RH-CAS, Document 95 (N.D. Fla. filed Nov. 5, 2014); Armstrong v. Brenner, --- U.S. --- (No. 14A650) (2014); Order Denying Motion to Stay Pending Appeal, Brenner v. Armstrong, No. 14-14061 (11th Cir. Dec. 3, 2014).
Following the United States Supreme Court’s denial of a stay extension of the Brenner injunction, the Pareto circuit court also lifted its stay on January 5, 2015, and authorized the Miami-Dade Clerk of the Court to issue marriage licenses to prospective spouses of the same sex. See Pareto, Defendant Harvey Rubin’s Motion for Clarification and Motion to Expedite, No. 14-1661 CA 24 (filed Dec. XX, 2014); id., Order on Defendant Harvey Rubin’s Motion for Clarification and Motion to Expedite (issued Jan. 5, 2015). Additionally, on December 31, 2014, a Florida Ninth Judicial Circuit Judge reportedly issued a declaratory order authorizing the Orange County Clerk of Courts to begin issuing same-sex marriage licenses on January 6, 2015.6 See J~, Excitement, frustration as judge clears same-sex marriage licenses (Dec. 31, 2014), http://www.baynews9.com/content/news/baynews9/news/article.html/content/
news/articles/cfn/2014/12/31/orange_county_same_s.html (last visited Jan. 23, 2015).
In this case, Claimant and NH provided a Certificate of Marriage issued in Ontario, Canada in September 2003. Ontario, Canada recognized same-sex marriage as of June XX, 2003, and Canada recognized the validity of same-sex marriage nationwide as of July XX, 2005. See The Law Library of Congress, Report for U.S. Social Security Administration LL File No. 2014-010685, Canada: Legal Recognition of Same-sex Marriage (2014). Thus, because the marriage between Claimant and NH is valid and Florida recognizes valid marriages from foreign jurisdictions, Claimant and NH are validly married under current Florida law.
V. Conclusion
Claimant is validly married to NH under Florida law for purposes of determining Claimant’s entitlement to HIB on NH’s earnings record.
Mary Ann Sloan
Regional Chief Counsel
By:
Owen Keegan
Assistant Regional Counsel
Footnotes:
All references to the Code of Federal Regulations are to the 2015 edition.
. All references to the Code of Federal Regulations are to the 2014 version.
. States must give full faith and credit to the judgments of other States, regardless of possible public policy concerns or conflicts. See U.S. Const. art. IV, § 1; 28 U.S.C. § 1738; Baker by Thomas v. General Motors Corp., 522 U.S. 222, 231-32 (1998); Trauger v. A.J. Spagnol Lumber Co., Inc., 442 So. 2d 182, 182-84 (Fla. 1983). The purported marriage in this case, however, is not a judgment.
. While the Brenner court’s preliminary injunction seemed to enjoin Florida state officials from any application of Florida’s same-sex marriage ban, the Brenner court clarified in a separate order that, at least regarding the issuance of same-sex marriage licenses, the preliminary injunction itself only requires the State to issue a license to the two unmarried plaintiffs named in the suit. See Brenner v. Scott, No. 4:14-cv-00107-RH-CAS, Document 109 (N.D. Fla. Jan. XX, 2015). However, the court also stated that, under the Federal Constitution, the State must treat all marriage applicants equally. See Brenner v. Scott, No. 4:14-cv-00107-RH-CAS, Document 109 (N.D. Fla. Jan. 1, 2015).
. Although the United States Supreme Court has not yet ruled on the constitutionality of states’ same-sex marriage bans, the Court recently consolidated four cases and granted certiorari to decide whether the Fourteenth Amendment requires a state to license same-sex marriages and recognize lawfully performed and licensed out-of-state same-sex marriages. See Bourke v. Beshear, --- U.S. --- (No. 14-574) (2014); DeBoer v. Snyder, --- U.S. --- (No. 14-571) (2014); Obergefell v. Hodges, --- U.S. --- (No. 14-556) (2014); Tanco v. Haslam, --- U.S. --- (No. 14-562) (2014).
. Notably, in addition to the Orange County and Miami-Dade County Clerks, the clerk of Palm Beach County, NH’s county of residence, has also begun issuing same-sex marriage licenses and performing same-sex marriage ceremonies. See http://www.mypalmbeachclerk.com/uploadedFiles/FAQs-for-same-sex-marriage-licenses.pdf (last visited Jan. 27, 2015).