United States Government

Memorandum

FORM G-115f (1-92)

Railroad Retirement Board

January 28, 2015

L-2015-03

TO

FROM

Chief ofRRA Application and Calculation

SUBJECT 1, deceased

surviving spouse applicant 

Same-Sex Marriage/Common Law Marriage

This is in reply to your request for my opinion on whether may be

determined to be the widower of deceased railroad employee for

purposes of entitlement to a surviving spouse annuity under the Railroad Retirement Act

(RRA), on the basis of a same-sex marriage. For the reasons explained in the following 

discussion, it is my opinion ^^^g is not entitled to a surviving spouse annuity under the

RRA.

I. Background

In the case submitted, ^^^g filed an application for a widower’s annuity based upon a

marriage to a deceased railroad employee,^^g. As ^^^g does not claim a formal

marriage ceremony was ever performed, his claim is based on an informal marriage under

common law. The parties resided in Ohio from November of 1957 through July of 1962.

The parties then resided in Detroit, Michigan from April of 1964 to the time ofg

death on May 28, 2013. The application does not state where the couple resided July of

1962 through April of 1964. The evidence in the application materials indicates that 

| state ofresidence at the time ofdeath was Michigan.
2

As noted above.^^Hclaims entitlement to a surviving spouse annuity under Section

2(d)(1) ofthe RRA, which provides in pertinent part that:

(d)(1) The following described survivors of a deceased employee who will

have completed ten years ofservice (or five years ofservice, all of which accrues

after December 31, 1995) and will have had a current connection with the railroad

industry at the time of his death shall, subject to the conditions set forth in

subsections (g) and (h) ofthis section, be entitled to annuities, ifthey have filed 

application therefor, in the amounts provided under section 4 of this Act—

(i) a widow (as defined in section 216(c) and (k) ofthe Social Security Act

[42 U.S.C. 416(c), (k)]) or widower (as defined in section 216(g) and (k) ofthe

Social Security Act) ofsuch a deceased employee who has not remarried and who

(A) will have attained the age ofsixty or (B) will have attained the age offifty but 

will not have attained age sixty and is under a disability which began before the 

end ofthe period prescribed in subdivision (2), and who, in the case of a widower,

was receiving at least one-half of his support from the deceased employee at the 

time of her death or at the time her annuity under subsection (a)(1) ofthis section

began;

For purposes of determining an applicant’s status as widow or widower ofthe railroad

employee under the foregoing provision, section 2(d)(4) ofthe RRA requires that the 

rules set forth in Section 216(h) ofthe Social Security Act must be applied. SS Act 

section 216(h) in turn provides in part that:

(h) Determination of family status

(l)(A)(i) An applicant is the wife, husband, widow, or widower of a fully or 

currently insured individual for purposes ofthis title ifthe courts ofthe State in which

such insured individual is domiciled at the time such applicant files an application, or,

ifsuch insured individual is dead, the courts ofthe State in which he was domiciled at

the time of death, or, ifsuch insured individual is or was not so domiciled in any State, 

the courts ofthe District ofColumbia, would find that such applicant and such insured

individual were validly married at the time such applicant files such application or, if

such insured individual is dead, at the time he died.

(ii) Ifsuch courts would not find that such applicant and such insured individual

were validly married at such time, such applicant shall, nevertheless be deemed to be

the wife, husband, widow, or widower, as the case may be, ofsuch insured individual

ifsuch applicant would, under the laws applied by such courts in determining the 

devolution of intestate personal property, have the same status with respect to the

taking ofsuch property as a wife, husband, widow, or widower ofsuch insured

individual. ***

In addition to the RRA and SS Act provisions, Congress enacted The Defense of

Marriage Act, Public Law 104-199 (110 Stat 2419) ("DOMA”) on September 21.1996.
3

Section 3 of DOMA defines the terms “marriage” and “spouse” so as to exclude samesex partners, as follows:

“In determining the meaning of any Act ofCongress, or of any ruling, 

regulation, or interpretation ofthe various administrative bureaus and agencies of

the United States, the word ‘marriage’ means only a legal union between one man

and one woman as husband and wife, and the word ‘spouse’ refers only to a

person ofthe opposite sex who is a husband or a wife.”

Prior to June 26, 2013, Section 3 prohibited the payment of a Federal annuity or benefit

based upon a same-sex relationship even where the State of residence ofsuch applicant

recognized the same-sex relationship. In the case of United States v. Windsor 570 U.S.

___, 133 S. Ct. 2675 (2013), the Supreme Court issued a decision which found that

Section 3 of DOMA is unconstitutional. The Supreme Court noted that regulation of

domestic relations was historically the province ofthe States that dated back to the

beginning ofthe nation and that the Federal level domestic relations restrictions

contained in DOMA rejected this long-established concept. The decision in Windsor

removed the prohibition of recognition ofsame-sex marriage in States where it is

recognized. However, the Windsor holding specifically reserves the regulation of

marriage to the individual States. Moreover, Windsor did not address Section 2 of

DOMA, which allows states to refuse to recognize same sex marriages valid under the

laws of other states.

1 note that the Social Security Administration (SSA) and the Department ofJustice (DOJ)

have issued guidance in this area that is helpful in addressing the current case. In a

February 10, 2014 memorandum to all department employees, the Attorney General 

stated, “... the Department will interpret the terms “spouse”, “marriage”, “widow”,

“widower”, “husband”, “wife”... to include married same-sex spouses whenever

allowable.” Further, the memorandum stated, “The Department will recognize all

marriages, including same-sex marriages, valid in the jurisdiction where the marriage was 

celebrated to the extent consistent with law.”

The SSA issued guidance that became effective December 3, 2014, in its Program 

Operations Manual System (POMS) to determine marital status for same-sex couples

under SS Act section 216(h). POMS section GN 00210.002 provides the guidance to

follow in determining whether SSA may recognize a same-sex marriage for benefit 

purposes. Step 11 ofthe guidance directs that when the covered employee1” is deceased,

at the time of death the employee must have been domiciled (a resident) in a state that 

recognized same-sex marriage, or that recognized same-sex marriage performed in any

other state. The guidance directs that ifthe answer to that questions is ‘no’, the

application must be denied.

Since the United States Supreme Court rendered the decision in United States v. Windsor.

For purposes of the RRA, the term number holder or employee refers to

the spouse who had the railroad service upon which the application is

filed.
4

several Federal Circuit Courts of Appeals have considered whether state recognition of

same-sex marriages is Constitutionally required. The Fourth, Seventh, Ninth, and Tenth 

Circuits have struck down state laws that prohibited same-sex marriage in Virginia." 

Indiana, Wisconsin,' Idaho, Nevada,4 Utah,' and Oklahoma/’ Petitions for certiorari to

the Supreme Court are still pending from the Sixth and Ninth Circuit, but were denied in

the others on October 6, 2014. The Fifth Circuit held oral argument in three cases on

January 9, 2015,7 but has not yet decided the cases.

The employee and claimant in the case presented resided in Michigan at the employee’s

death. The United States Court of Appeals for the Sixth Circuit issued a decision on

November 6, 2014 short titled. DeBoer v. Snvder (722 F.3d 388 (6th Cir. 2014)pet. for

cert, filed November 14, 2014; cert, granted January 16, 2015). That case considered

State laws in Michigan, Ohio, Kentucky, and Tennessee in four cases consolidated into

one appeal.

|specifically, was an appeal to the Sixth Circuit from a Michigan case. The state 

of Michigan, in 2004, amended the State’s constitution to define marriage as “the union 

of one man and one woman [as the] ... only agreement recognized as a marriage or

similar union for any purpose.” (Mich. Const, art. 1, § 25) Ms. challenged the

Constitutionality of Michigan’s marriage laws which she argued are in violation ofthe

due process and equal protection guarantees ofthe Fourteenth Amendment. The Sixth 

Circuit issued a lengthy decision which, ultimately, reversed the District Court’s decision

and upheld the Constitutionality ofthe definition of marriage in the Michigan State

Constitution. The Sixth Circuit reasoned that the “Federal government has traditionally

relied on the individual states to define marriage instead of purporting to define marriage

itself’ [(DeBoer at 24. quoting from U.S. v. Windsor. 133 S. Ct. 2675) (2013)].

II. Analysis

Within the Sixth Circuit, Michigan and Ohio are the two states that are relevant to the

application as the two states in which the record indicates the parties resided. Michigan 

Code Chapter 551 Section 2 (MCLS §551.2) states, in relevant part, that “...Consent

alone is not enough to effectuate a legal marriage on or after January 1, 1957....” Thus,

prior to January 1, 1957, residents of Michigan could establish an informal marriage

under common law. Michigan case law holds that to constitute a common law marriage,

the parties must establish that they agreed to take each other as husband and wife and

cohabit together in the usual manner of married people holding each other forth to the

world as ifthey are married. Michigan case law also allows for the recognition of a valid

Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert, denied, 135 S. Ct. 314 (Oct. 6, 2014).

Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), cert, denied, 135 S. Ct. 316 (Oct. 6, 2014).

Latta v. Otter, 771 F.3d 456 (9lh Cir. 2014), petition for cert, filed (Dec. 31, 2014).

Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), cert, denied, 135 S. Ct. 265 (Oct. 6,

2014).

Bishop v. Smith, 760 F.3d 1070 (10lh Cir. 2014), cert, denied, 135 S. Ct. 271 (Oct. 6, 2014).

Campaign for Southern Equality v. Bryant, Docket No. 14-60837 (Mississippi), Robicheaux

v. Caldwell, Docket No. 14-31037 (Louisiana), and DeLeon v. Perry, Docket No. 14-50196 

(Texas).
5

common law marriage validly entered into in another state. The General Counsel advised 

in Legal Opinion L-l975-537 that applicants who establish a valid common law marriage

in Michigan, based upon the case law standard summarized previously, prior to January

1, 1957, will be entitled to benefits under the Railroad Retirement Act.

Michigan case law regarding common law marriage considers only male-female

marriage. Further, Michigan passed a Constitutional amendment in 2004 that banned 

same-sex marriage and civil unions (Michigan proposal 04-2). In August 2012, a samesex couple in Michigan amended a Federal District Court lawsuit dealing with adoption

to include a Constitutional challenge to Michigan’s same-sex marriage ban, which

ultimately became the^^^Hcase in the Sixth Circuit Court of Appeals discussed

above. While following the Supreme Court decision in Windsor, the District Court 

Judge, on March 21, 2014, ruled that Michigan’s same-sex marriage ban was

unconstitutional, the Sixth Circuit Court of Appeals stayed enforcement ofthe ruling 

maintaining Michigan’s prohibition ofsame-sex marriage. With the Sixth Circuit’s

ruling in^JJE the same-sex marriage ban remains in effect8.

Ohio recognizes common law marriage prior to October 10, 1991. Ohio Revised Code 

chapter 3105 part 12 (ORC Ann. 3105.12) state, in relevant part, that “...(B)(1) On and

after October 10, 1991 ... common law marriages are prohibited in this state, and the

marriage ... may occur in this state only ifthe marriage is solemnized by a person

described in section 3101.08 ofthe Revised Code....” The Ohio Revised Code then

states, in summary, that if a common law marriage can be proved to have occurred prior

to October 10, 1991, that the marriage will be held to be valid and remain valid after 

October 10, 1991. Ohio caselaw holds that a party seeking to establish common law 

marriage must demonstrate an agreement ofmarriage in praesenti (at the present time),

cohabitation as husband and wife, and a holding out by the parties to the community

which results in the reputation as a married couple. The General Counsel advised in

Legal Opinion L-l976-42 that applicants who establish a valid common law marriage in

Ohio, based upon the caselaw standard summarized previously, on or prior to October 10,

1991, will be entitled to benefits under the Railroad Retirement Act. Once again, 

however, Ohio case law regarding common law marriage considers only male-female

marriage.

The evidence ofrecord indicates that^^J, the railroad employee upon whose railroad

service the application is based, was a resident of Michigan when he died. Under RRA 

2(d)(4) and SS Act section 216(h), status is controlled by Michigan law.

Although and^^Jresided in Ohio from 1957 to 1962 as a couple, there is no

Ohio case law to support a conclusion that Ohio would recognize a valid common law

marriage between same sex partners during that time. Moreover, as I noted above, the

Windsor decision did not invalidate section 2 of DOMA, which precludes requiring

Information to be further considered is that 4 ofthe 83 county clerks in Michigan opened their offices on

Saturday, March 22, 2014 to issue marriage licenses to same-sex couples. 323 marriage licenses were

issued on that day, prior to entry ofthe indefinite stay on enforcement. On March 28, 2014, the U.S.

Attorney General announced the Federal Government will recognize same-sex marriages in Michigan ifthe

ceremony was performed on March 22, 2014.
6

Michigan recognition ofsame sex marriages formed in other States. Accordingly, even 

assuming a same-sex common law marriage could arise in Ohio during the 1957-1962 

period ofresidence, the status ofsame sex marriage under Michigan law is determinative

under section 216(h) and RRA section 2(d)(4).

From the citations previously discussed regarding Michigan law and cases, Michigan

does not recognize same-sex marriage. The Sixth Circuit in^^^H upheld Michigan’s

definition of marriage. While 37 states and the District of Columbia have to date fully or 

partially recognized same-sex marriages, Michigan does not. Further,and |

were not married by a county clerk on March 22, 2014 in Michigan (see footnote above). 

Therefore, on the facts presented, cannot qualify as the widower of deceased rail

employee pursuant to Section 2(d)(1) of the Railroad Retirement Act.

In closing I note that this opinion is based upon the facts presented, and the current state 

ofthe law in Michigan, Ohio, and the interpretation ofthe Defense of Marriage Act 

following the Windsor decision. Entitlement under the RRA based on same-sex

marriages not subject to the Sixth Circuit decision must be reviewed on an

individual basis due to the evolving national and state litigation.