What today's US Supreme Court ruling in Astrue v. Capato might mean for children of LGBT parents

In a unanimous opinion written by Justice Ruth Bader Ginsburg, the US Supreme Court today weighed in on how the Social Security Act defines "child" for purposes of receiving survivor's benefits when a covered employee dies.  Karen Capato was seeking such benefits for twins born 18 months after the death of her husband, Robert.  The twins were conceived by IVF after Robert's death using semen he had frozen before this death specifically for that purpose.

Karen claimed the children were entitled to benefits because they inherently met the definition of "child" since they were the biological children of married parents.  The Social Security Administration (SSA) looked to a separate statutory provision and ruled that the determination of eligibility rested in state intestacy law; if the children could inherit from Robert if he died without a will then they were eligible for benefits.  Under the law in Robert's domicile at the time of his death  -- Florida -- children conceived post-death do not inherit without a will, so the twins were not Robert's children for purposes of receiving benefits.

In Astrue v. Capato, the Supreme Court ruled in favor of the SSA.  Although I generally favor expansive distribution of benefits and novel claims as to what makes a parent, I found the opinion satisfying on a number of levels.  First, Karen's claim was that the children were so obviously Robert's children that it was inappropriate to look at any other part of the statute, including the intestacy test, for a definition.  Why was this so obvious? Because, Karen argued, they were the biological children of married parents.  I took great pleasure in Justice Ginsburg's criticism of that argument.  Karen tried to claim that it was unconstitutional to distinguish between children conceived pre- and post-death, but Justice Ginsburg virtually chastised Karen for arguing that the SSA should "eliminate the intestacy test only for biological children of married parents." (emphasis in original!) Justice Ginsburg clearly did not think highly of Karen asking the Court to distinguish between "children whose parents were married and children whose parents' liaisons were not blessed by clergy or the State."

I also like that the opinion is clear that neither marriage nor biology is necessary to be the "child" of a deceased worker for purposes of survivor's benefits.  The opinion specifically cites to statutes that say a semen donor is not a parent to illustrate that "a biological parent is not necessarily a child's parent under the law."  As for marriage, the opinion says that "marriage does not ever and always make the parentage of a child certain, nor does the absence of marriage necessarily mean that a child's parentage is uncertain.  An unmarried couple can agree that a child is theirs, while the parentage of a child born during a marriage may be uncertain."  By explicitly separating the definitions of parent and child from both marriage and biology, the opinion creates space for definitions based on other criteria, including ones that recognize the parentage of children raised by same-sex couples.

The catch is that the SSA will look to the law of each state, and specifically to the state where the deceased worker was domiciled.  Within that state, the SSA will look to intestacy law.  So the patchwork of laws affecting gay and lesbian families will continue to produce dramatically different consequences across state lines.  Of course that's also what happens to other children -- including the twins who were the subject of the Capato case; the opinion cites the statutes of several states that do allow posthumously conceived children to inherit, but Florida -- where Robert was domiciled -- does not.

As for our children, we assume that an adoption decree from one state will get Full Faith and Credit in every state.  But will it mean that in every state that child can inherit from the nonbiological parent in the absence of a will?  Probably yes. Without an adoption, it will be much more of an uphill climb.  When parentage derives from a consent-to-insemination statute in a different state or from a couple's marriage/civil union/domestic partnership elsewhere, the SSA might find that the state would not consider the child to be the deceased's child for intestacy purposes.  In that case, bye bye Social Security survivor's benefits. BUT...this is the time for me to remind everyone that the 2008 amendments to the Uniform Probate Code Section 2-120(f) do grant a child the right to intestate succession from a person -- male or female, married or unmarried -- who consents to a woman's insemination with the intent to be a parent.  And there is an old doctrine of equitable adoption that allows a child to inherit even if there was no actual adoption.  There are some states whose laws are not friendly to same-sex couples and their children, but if those states have the 2008 UPC amendments or a robust doctrine of equitable adoption, a child there may still qualify for SSA benefits.

Also, I want to remind everyone that the SSA has already ruled (and this was in 2007, under the Bush administration) that a child born to a couple in a Vermont civil union is eligible for disability benefits from the nonbiological mother, and the Justice Department has determined that granting those benefits does not run afoul of the Defense of Marriage Act.  Here is the opinion letter.  And the reason is because the child was eligible to inherit by intestate succession in Vermont, where the disabled worker was domiciled.  Period.  But had the family moved elsewhere, it would have been that state's law that SSA would look to.

So that the bad news -- and the good news -- in today's opinion.

It's economic interdependence, not marriage, that should afford benefits to partner of deceased state trooper

Missouri highway patrol officer Dennis Engelhard died in the line of duty on Christmas day. His surviving partner of 15 years, Kelly Glossip, is not entitled to a lifetime benefit of $28,000 a year. That benefit is reserved for spouses (and children). Defenders of the system point out that unmarried different-sex partners also do not get the benefit. I discuss many examples like this in my 2008 book and it's a perfect opportunity to illustrate the valuing-all-families methodology I advocate. Simply put, any law should include within its purview the relationships that are consistent with the purpose of the law.

The Missouri survivor's pension system no doubt dates to a time when married women were economically dependent upon their husbands (and from a time when women could not serve as highway patrol officers, I would guess.) The system's purpose is compensation for that dependency, given that the wage-earner has died serving the public interest. Why else would it exist? Well today there is no longer such a clear fit between marriage and economic dependency. The pension should go to a person who was financially dependent upon, or interdependent with, the deceased. Married or not.

Right now, there are state workers compensation systems that work this way. (The benefit is not as large, but it's a benefit that goes to the survivor of any worker who dies on the job; the size of the highway patrol officer's benefit recognizes the risk faced by public safety officers). Had the September 11th attacks occurred in Los Angeles, for example, surviving same-sex partners would have received the same workers comp survivors benefits available to spouses, because California looks to economic interdependency, not marriage, in awarding those benefits.

The article on Engelhard's death notes that Glossip may be eligible for a federal benefit. That's true. The Mychal Judge Act, passed after September 11th (and named for a beloved -- and openly gay -- Catholic priest who worked for the New York fire department and who died administering last rites at the World Trade Center site), authorizes a one time federal payment to the survivor of any public safety officer who dies on the job. If the person is not married and has no children, the payment goes to whomever the officer has selected. Englehard would have had an opportunity to select Glossip as a beneficiary. If he did, that's the end of the matter.

What's the purpose of the federal benefit? It appears to be public recognition of the value of a deceased public safety officer -- a way of valuing and honoring his or her work. Mychal Judge himself died without a spouse, parents, or children, and so no one was eligible to receive the federal benefit in existence up until that time. It was to remedy that wrong that Congress amended the law to allow the officer to designate a beneficiary. (Judge's benefit went to his sisters, whom he had designated as the beneficiaries of his life insurance policy.) Congress might have decided that compensation for the loss of an economic provider was the purpose of the benefit. If it had, then Judge's death would have created no benefit, since no one depended upon him. So Congress actually choose a different basis -- a kind of a parting gift to the estate of the fallen officer. Since each of us gets to decide where our assets go when we die, then it makes sense to allow an officer to select a beneficiary.

Gay rights groups might use Engelhard and Glossip as yet another reason why same-sex couples must be allowed to marry. I use it to illustrate that marriage is the wrong dividing line between who gets a survivors benefit and who doesn't.