Report Clarifies Effect of State Same-sex Marriage Laws on Social Security

May 8, 2006 ( - With the legalization of same-sex marriage in Massachusetts, questions arise as to the effect of the mandate on social security and pensions.

The Congressional Research Service (CRS) issued a report that addresses these questions. In its report “The Effect of State-Legalized Same-Sex Marriage on Social Security Benefits and Pensions,” CRS indicates that the Defense of Marriage Act (DOMA) governs when administering social security or pension benefits.

According to the report, while the Social Security Act defers the determination of whether an individual is married to the state of residence of the worker, the Act uses gender-specific pronouns in its definitions of husband and wife. The Social Security Administration interprets this as indicating that Congress did not intend for same-sex spouses to be eligible for social security benefits, the report says.

Additionally, CRS concludes in its report that the DOMA defines a spouse only as a person of the opposite sex who is a husband or wife when determining meaning in any act of Congress, so legalization of same-sex marriages has no effect in determining whether a person is married for social security purposes. Likewise, CRS argues that this applies to interpreting the Employee Retirement Income Security Act (ERISA). Therefore ERISA-governed private pension plans are subject to the DOMA definition of spouse.

The portion of the federal code that governs federal employee pensions does not reference gender in its definition of spouse. However, the Code of Federal Regulations says that marriage is defined by the jurisdiction with the most significant interest in the marital status of the employee “unless the law of that jurisdiction is contrary to the public policy of the United States.” For this reason, CRS says, federal pensions are subject to the determination of spouse under DOMA.

CRS points out that there are several bills in Congress aimed at clarifying the definition of marriage on the federal level, some affirming the DOMA and some seeking to amend it. Two bills in particular are aimed at extending federal pension benefits to domestic partners of employees.

The CRS report is here .