United States Government

Memorandum

FORM G-115f (1-92)

Railroad Retirement Board

August 14, 2015

L-2015-03.1

TO

FROM

Director of Policy and Systems

General Counsi

SUBJECT Same-Sex Marriage —

This memorandum is in response to your July 14, 2015 request for a legal opinion

regarding eligibility and annuity beginning dates for spousal benefits in eight

pending applications by same-sex spouses. These eight pending applications each

involve a railroad employee and spouse who were married in a U.S. state which

recognized same-sex marriages at the time of their marriage, but were domiciled in

a state which did not recognize their marriage prior to the U.S. Supreme Court

decision in v. | on June 26, 2015. You requested my opinion as to

whether benefits may be paid with full retroactivity to the application filing date in

these cases. As explained below, in my opinion each application pending may be

granted full retroactivity.

Section 2(c)(1) of the Railroad Retirement Act (RRA) (45 U.S.C. §231a(c)(l))

establishes that the spouse of an employee who is receiving a regular employee

annuity under the RRA shall be entitled to a spouse’s annuity, if the spouse has

attained retirement age as defined in section 216(1) of the Social Security Act (42

U.S.C. §416(0) or has attained age 60 when the employee has completed 30 years of

railroad service. Section 2(c)(3) of the RRA (45 U.S.C. §231a(c)(3)) further provides

that for purposes of a spouse’s annuity, the term “spouse” shall mean the wife or

husband of the annuitant who was married to the annuitant for not less than one

year immediately preceding the date of application for a spouse’s annuity. Section

2(d)(4) of the Act (45 U.S.C. §231a(d)(4)) states that when determining whether an

applicant for benefits is the wife, husband, widow, widower, child, or parent of an

employee under the RRA, the rules set forth in section 216(h) of the Social Security

Act (42 U.S.C. §416(h)) shall be applied. Section 216(h) of the Social Security Act

states that:

“An applicant is the wife, husband, widow, or widower of a fully or

currently insured individual for purposes of this title if the courts of

the State in which such insured individual is domiciled at the time

such applicant files an application, or, if such insured individual is

dead, the courts of the State in which he was domiciled at the time of

death, or, if such insured individual is or was not so domiciled in any
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State, the courts of the District of Columbia, 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.”

As a result, the Board must evaluate the laws of the State of domicile when

determining an applicant's status as a husband or wife for purposes of eligibility for

a spouse annuity under the RRA.

Furthermore, section 5(a) of the RRA (45 U.S.C. §231d(a)) allows a spouse annuity

to begin no earlier than the latest of:

(i) The first day of the sixth month before the month in which the

application was filed."

(ii) The first day of the month in which the application was filed if the

effect of beginning the annuity in an earlier month would result in a

greater age reduction in the annuity;

(iii) The day after the day the applicant last worked for a railroad

employer; or

(iv) The first day of the month in which the applicant meets the age

requirement for the annuity applied for.

Nevertheless, an individual must meet the definition of a husband or wife under

section 2(c)(3) of the RRA as a prerequisite for eligibility for a spouse’s annuity,

regardless of the earliest annuity beginning date under section 5(a) of the RRA.

In v. 576 U.S. ____, 192 L. Ed. 2d 609, 631 (2015), the U.S.

Supreme Court held that under the Due Process and Equal Protection Clauses of

the Fourteenth Amendment to the U.S. Constitution, same-sex couples may not be

deprived of the right to marry. Accordingly, the Court also held that “there is no

lawful basis for a State to refuse to recognize a lawful same-sex marriage performed

in another State on the ground of its same-sex character.” Id. at 634. As a result, on

and after June 26, 2015, all states are required to recognize same-sex marriages

validly performed in other states. The eight applications you identified in your

request for an opinion were all filed with the Railroad Retirement Board prior to

June 26, 2015, and the individuals applying for spousal benefits were domiciled in

states that did not recognize same-sex marriage prior to June 26, 2015. No final

decision has been issued on these eight pending applications.

Generally, Supreme Court decisions in the context of a civil case are given full

retroactive effect. “Both the common law and our own decisions... have recognized a

general rule of retrospective effect for the constitutional decisions of the Court.”

Harper v. Virginia Department of Taxation. 509 U.S. 86, 94 (1993) (quoting

Robinson v. Neil, 409 U.S. 505, 507 (1973)). “When this Court applies a rule of

federal law to the parties before it, that rule is the controlling interpretation of

federal law and must be given full retroactive effect in all cases still open on direct

review and as to all events, regardless of whether such events predate or postdate

our announcement of the rule.” Harper, 509 U.S. at 98. The interpretation of the

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Fourteenth Amendment in Obergefell v. Hodges is such an interpretation of federal

law that must be given retroactive effect in pending cases.

As noted above, section 2(d)(4) of the Railroad Retirement Act (45 U.S.C.

§231a(d)(4)) states that when determining whether an applicant for benefits is the

wife, husband, widow, widower, child, or parent of an employee under the Act, the

rules set forth in section 216(h) of the Social Security Act (42 U.S.C. §416(h)) shall

be applied. Because the Railroad Retirement Act adopts the definitions in the Social

Security Act for these family relationships, the Railroad Retirement Board may look

to rules promulgated by the Social Security Administration to promote consistency

in the administration of benefits under the Railroad Retirement Act and Social

Security Act. In these cases, applying the rule announced in Obergefellretroactively

is consistent with the approach taken by the Social Security Administration for

determining marital status for same-sex couples. The Social Security

Administration Program Operations Manual System (POMS) at section GN

00210.002 contains a decisional flow chart detailing Social Security policy for

determining marital status of same sex couples. Step 8 of the chart looks to the

state of celebration of the ceremonial same-sex marriage," if the marriage was

celebrated in a state during a period that the laws of the state permitted same-sex

marriage, the marriage may be considered valid for benefits purposes, assuming all

other relevant criteria are met. Meanwhile, step 10 of the chart looks to the state of

domicile for the Social Security number holder; if the out-of-state marriage was

recognized as valid in the state of domicile at any time during which the claim was

pending a final determination, the marriage may be valid for benefits purposes,

assuming all other relevant criteria are met. Since all states of domicile recognized

the validity of out-of-state marriages of same-sex couples no later than June 26, 

2015, any claim involving an otherwise valid same-sex marriage pending before the

Social Security Administration after that date would be considered a valid

recognized marriage in the state of domicile throughout the entire period of a

pending application.

Finally, I note that allowing full retroactivity is consistent with prior advice of this

office. In Legal Opinion L-1967-173, the Associate General Counsel advised the

Director of Retirement Claims to apply retroactively the Supreme Court decision in

Loving v. Virginia, 388 U.S. 1 (1967), which invalidated State laws banning

interracial marriages.

Because the holding of the U.S. Supreme Court in Obergefell v. Hodges must be

applied retroactively, and because retroactivity is consistent with both the policy of

the Social Security Administration in analogous cases under the Social Security Act

and with agency precedent, in my opinion an applicant for a spouse’s annuity who

validly celebrated a marriage to a railroad employee in any state may be considered

the husband or wife of the railroad employee for purposes of a spouse’s annuity as of

the date of celebration of the marriage, regardless of the state of domicile, if the

application was pending after June 26, 2015. Because all of the pending

applications you identified in your request for an opinion were filed after the

couples celebrated a valid marriage in a state that recognized same-sex marriage at

the time of celebration, in my opinion the couples should be considered validly

&

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married at the time of the application and benefits may be paid as of the application

date if all other eligibility criteria are met. The advice I provided earlier in Legal

Opinion L-2015-03 applying the decision in United States v. Windsor, 570 U.S. 12,

133 S. Ct. 2675 (2013) to the split in authority between the U.S. Courts of Appeals

regarding validity ofsame-sex marriages is no longer effective.

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Individual Cases

and a same-sex couple, were married in Iowa on

July 18, 2013. Iowa permitted same-sex marriages in the state as of April 20, 2009.1

The couple resides in Kentucky. Kentucky recognized same-sex marriages from

other states as ofJune 26, 2015. The railroad employee, applied

for a Full Age 60/30 annuity from the RRB on February 25, 2009. The same-sex

spouse applicant filed an application for a Full Age 60/30 spouse annuity on April

23, 2014.

Mr. and Mr. should be considered validly married for purposes of a

spouse’s annuity as ofJuly 18, 2013.

and |, a same-sex couple, were married in New

Mexico on February 14, 2014. New Mexico permitted same-sex marriages in the

state as of August 21, 2013. The couple resides in Texas. Texas recognized same-sex

marriages from other states as of June 26, 2015. The railroad employee, |

applied for a Full Age 60/30 annuity from the RRB on January 14, 2014. The

same-sex spouse applicant filed an application for a Full Age 60/30 spouse annuity

on May 8, 2015.

Mr. and Mr. should be considered validly married for purposes of a

spouse’s annuity as of February 14, 2014.

and a same-sex couple, were married in

California on November 12, 2013. California permitted same-sex marriages in the

state from June 16, 2008 to November 4, 2008, and again after June 26, 2013. The

couple resides in Texas. Texas recognized same~sex marriages from other states as

of June 26, 2015. The railroad employee, | applied for a Full Age

60/30 annuity from the RRB on September 27, 2007. The same-sex spouse applicant

filed an application for a Full Age 60/30 spouse annuity on August 15, 2014.

Mr. Mr. should be considered validly married for purposes of

a spouse’s annuity as of November 12, 2013.

and a same-sex couple, were married in

California on November 5, 2013. California permitted same-sex marriages in the

state from June 16, 2008 to November 4, 2008, and again after June 26, 2013. The

1 For dates same-sex marriages were permitted or recognized in particular states, see Social 

Security Administration POMS GN 00210.003.

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couple resides in Texas. Texas recognized same-sex marriages from other states as

ofJune 26, 2015. Both spouses are railroad employees. applied for a

Reduced Age annuity from the RRB on August 27, 2008. applied

for a Disability annuity from the RRB on January 10, 2005. Both individuals filed

applications for Full Age spouse annuities on October 22, 2014.

Mr. and Mr. should be considered validly married for purposes of

spouse’s annuities as of November 5, 2013.

I and a same-sex couple, were married in Iowa on

May 12, 2014. Iowa permitted same-sex marriages in the state as of April 20, 2009.

The couple resides in Texas. Texas recognized same-sex marriages from other states

as of June 26, 2015. The railroad employee, applied for a Full

Age 60/30 annuity from the RRB on December 20, 2000. The same-sex spouse

applicant filed an application for a Full Age spouse annuity on April 3, 2015.

Ms. and Ms. should be considered validly married for purposes of a

spouse’s annuity as of May 12, 2014.

I and M a same-sex couple, were married in Iowa on

April 25, 2014. Iowa permitted same-sex marriages in the state as of April 20, 2009.

The couple resides in Nebraska. Nebraska recognized same-sex marriages from

other states as ofJune 26, 2015. The railroad employee, applied

for a Full Age 60/30 annuity from the RRB on July 31, 2014. The same-sex spouse

applicant filed an application for a Full Age 60/30 spouse annuity on March 11,

2015.

Mr. and Mr. should be considered validly married for purposes of a

spouse’s annuity as of April 25, 2014.

I and a same-sex couple, were married in

Vermont on November 7, 2009. Vermont permitted same-sex marriages in the state

as of September 1, 2009. The couple resides in Georgia. Georgia recognized samesex marriages from other states as of June 26, 2015. The railroad employee,

| applied for a Full Age 60/30 annuity from the RRB on January

10, 2012. The same-sex spouse applicant filed an application for a Full Age 60/30

spouse annuity on June 25, 2014.

Mr. and Mr. should be considered validly married for purposes of a

spouse’s annuity as of November 7, 2009.

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