Chinks in DOMA's Armor?

The Department of Justice recently released this opinion interpreting the Social Security Act in a way that will benefit families headed by same sex couples in some states. The opinion was released last October, but it was blogged about yesterday at the Legal Times and Law.com. Although the opinion was about Social Security health insurance benefits, it may apply to other federal statutes and regs worded in the same way. (And so may reach federal employees or other insurance programs--thus the tie-in to the workplace).

The DOJ was asked whether the federal Defense of Marriage Act (DOMA), which limits marriage for purposes of federal law to unions between a man and a woman, foreclosed the extension of Social Security child insurance benefits to a child of a woman eligible for Social Security Disability benefits who was in a civil union. The child was not the biological child of the woman eligible, nor had she adopted him.

In finding the child eligible, the DOJ analyzed the language of the Social Security Act, which defines a child eligible by referring to state law governing intestate succession. Because Vermont would treat this child as the woman's child (and eligible to take property if she died without a will) under its civil union laws, the child is eligible for benefits under Social Security.

DOMA was frankly irrelevant because it only governs the definition of marriage and the obligations of states or the federal government to recognize certain marriages. The parent-child relationship simply isn't marriage. I'd be curious to know what other statutes (or policies) define child in this way and so may be impacted by this decision.

MM