This editorial appeared in the Washington Post:
Last year, lawyers for the Social Security Administration queried the Justice Department: Does the federal Defense of Marriage Act (DOMA), which denies federal benefits to same-sex couples, also bar the child of a same-sex couple from receiving Social Security benefits from his non-biological parent? The Justice Department's Office of Legal Counsel concluded in an opinion made public last month that Elijah, son of Karen and Monique, had a right to those benefits.
How could the OLC, which gained notoriety for putting ideology before the rule of law to justify extreme interrogation techniques, come to such a conclusion? By reading the law governing Social Security benefits neutrally and correctly - and by keeping politics out of the analysis. In short, it relied on a straightforward - some might say "conservative" - approach to produce a result that even "liberals" should applaud. To his credit, OLC acting chief Steven Bradbury, who has been criticized for his work on Justice Department interrogation matters, approved the Social Security memo.
The two women in the case, identified in the OLC opinion only as Monique and Karen, entered into a civil union in Vermont in 2002, and Monique gave birth to a son, Elijah, in 2003. Because of the civil union, Karen was identified on the birth certificate as "second parent." When Karen became eligible for disability benefits in 2005, she asked that Elijah receive "child's insurance benefits" under Social Security to supplement their lost income. The Social Security Administration asked the OLC for guidance on whether the Defense of Marriage Act prohibited such benefits.
The OLC's deputy, Steven Engel, wrote in the opinion that the Defense of Marriage Act has no bearing on Social Security benefits for children. "Although DOMA limits the definition of 'marriage' and 'spouse' for purposes of federal law, the Social Security Act does not condition eligibility for (child insurance benefits) on the existence of a marriage or on the federal rights of a spouse in the circumstances of this case," Engel wrote. Instead, the Social Security Act looks at whether the law in the state in which the parties reside recognizes the minor as the child of the adult in question. Vermont law deemed Elijah to be Karen's child, thus entitling him to an inheritance if Karen died without a will.
Child benefits under Social Security were meant to protect children if their parents became disabled or died. It is reassuring to know that because of the OLC's straightforward reading of the law, kids such as Elijah now formally enjoy those protections.