Memorandum

United States Government

October 2, 2015

L-2015-48

Railroad Retirement Board

TO

RRA Application and Calculation

THROUGH: Kimberly Price-Butler, Director of Policy & Systems

FROM : I

General Counsel

SUBJECT : Payment of Same-Sex Benefits for Application based upon

Common Law Marriage

This is in answer to the March 23, 2015 memorandum seeking legal advice related

to an application for a spouse annuity. Policy and Systems seeks an opinion on

whether the Board may make spouse annuity payments to this same-sex commonlaw marriage applicant. In meeting with staff from my office. Policy and Systems

also expressed interest in receiving an opinion that could be used in the 

adjudication of future common law relationships between a same-sex couple. It is

my opinion that based upon the recent Supreme Court decision of Obergefell v.

Hodges 576 U.S. _____, 192 L.Ed 2d 609 (2015) and the advice contained in

Legal Opinion L-2015-3.1, the Board may adjudicate common law marriage

applications from a same-sex couple in the same manner as common-law marriage

applications from a male-female relationship. The analysis is as follows.

As previously discussed in L-2015-3.1, the Supreme Court in Obergefell v.

Hodges 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 samesex marriages validly performed in other states. The Equal Protection Clause

1 Citiation remains pending.
2

argument offered by the Court extends to a common law marital relationship. If a

man and woman would be recognized as a valid common law marriage, it would

be a violation of the Equal Protection Clause to not recognize a similarly situated 

same-sex couple under existing common law doctrine of a state which recognizes

a common law marital relationship. It is my opinion that the Supreme Court 

decision removes same-sex relationship “barriers” to a common law analysis 

relating to recognition of a marriage for benefit purposes under the Railroad 

Retirement Act.

Next, the annuity beginning date for an application based upon common law

relationships must be addressed. Again, in L-2015-3.1, I explained that 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

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

federal law that must be given retroactive effect in pending cases.

In the present case, the couple in question resided in Alabama, a state which

recognizes common law marital relationships. As previously explained, there is

no longer a same-sex “barrier” to the validity of the common law marital 

relationship. The spouse completed an application for a spouse annuity on

September 11, 2013. The case has been pending since that time. According to

your memorandum, the application contained the appropriate documentation to 

prove a common law marriage under Alabama law and the only impediment to

granting a spouse annuity at the time of the application was the couple’s same-sex 

status. Based upon the retroactivity analysis of previous opinions, the annuity 

beginning date should be established based upon the September 11, 2013

application.

This opinion may be used for other same-sex common law marriage applications 

to the extent that any common law application from a same-sex couple should be

analyzed under the common law procedures and same-sex status should no longer

be a factor in light ofthe Supreme Court’s ruling in Obergefell. Future same-sex 

applications only need to be forwarded for a legal opinion based upon questions 

related to the common law status ofthe applicant, as same-sex status is no longer 

an issue.