b'July 18, 1978\n\n78-39\n\nMEMORANDUM OPINION FOR THE SOLICITOR,\nDEPARTMENT OF THE INTERIOR\nAntilobbying Laws (18 U.S.C. \xc2\xa7 1913, Public Law\n95-465, 92 Stat. 1291)\xe2\x80\x94 Department of the Interior\n\nThis is in response to your request that we consider the effect of 18 U.S.C.\n\xc2\xa7 1913 and several appropriation act riders on various materials prepared by the\nDepartment of the Interior for public release in connection with proposed\nlegislation.\nThis Department has long taken the position that the purpose of 18 U.S.C.\n\xc2\xa7 1913, as revealed in its legislative history, is to restrict the use of appropriated\nfunds for a campaign of telephone calls, telegrams, letters, or other dissemina\xc2\xad\ntions particularly directed at members of the public urging the recipients to\ncontact Members of Congress about pending legislative matters. Section 1913\nhas not been construed by this Department to sweep more broadly than this\nevident legislative purpose so as to preclude the President or executive branch\nagencies from informing the public about programs and policies of the\nadministration, including those that touch on legislative matters. This interpre\xc2\xad\ntation of \xc2\xa7 1913, drawn from its legislative history, is consistent with rules of\nconstruction applicable to criminal statutes generally. Moreover, it respects the\nFirst Amendment right of the public to receive information about administra\xc2\xad\ntion programs and the President\xe2\x80\x99s constitutionally based role in the legislative\nprocess.\nSection 304 of the Interior Department Appropriation Act (Pub. L. No.\n95-465, 92 Stat. 1291) by its terms appears to incorporate the substance of\n\xc2\xa7 1913 and should presumably be interpreted in the same manner as that\nprovision. Our interpretation of provisions such as that in \xc2\xa7 607(a) of the\nTreasury, Postal Service, and General Government Appropriation Act of 1979\n(Pub. L. No. 95-465, 92 Stat. 1001), which largely conforms to interpretations\nby the Comptroller General, have been based on similar considerations as those\nidentified above in connection with 18 U.S.C. \xc2\xa7 1913.\nYour Department\xe2\x80\x99s press releases that merely disclose information that\nofficials of your Department have given congressional testimony, made public\nspeeches, or explained the administration\xe2\x80\x99s legislative proposals, but do not call\n160\n\n\x0cfor the reader to contact the Congress, do not raise questions under the relevant\nstatutory provisions. In any event, normal distribution of releases to the press,\nwhose members may then independently determine whether to publish material\ncontained in the releases, are qualitatively different than broad disseminations\nmade directly by the Government to individual members of the public.\nThe Secretary\xe2\x80\x99s statement included in a series of columns in local newspa\xc2\xad\npers, touching on nonlegislative issues, appears to be a legitimate explanation\nof the Department\xe2\x80\x99s position on major issues of public importance. It does not\nraise a question under the relevant statutory provisions, nor do newsletters\naddressed to persons who had asked to be on a mailing list, containing a\nstraightforward explanation of issues of concern to the Department but making\nno suggestion that the reader contact Congress.\nJohn M . H\n\narm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n161\n\n\x0c'


b"Providing Representation for Federal Employees\nUnder Investigation by Their Inspector General\nN e ith e r th e D e p a rtm e n t o f Ju stic e n o r an y o th e r federal ag e n c y has a u th o rity to p ro v id e\nlegal rep re sen tatio n to a federal em p lo y ee in d isc ip lin ary p ro c e e d in g s in stitu ted by his\no w n ag en cy . A u th o rity to p ro v id e co u n sel to a federal em p lo y ee m ay be im plied o n ly\nw h e re th e em p lo y ee's official c o n d u c t h as b een atta c k e d by a n o n g o v e rn m e n ta l p lain tiff\n' o r a sta te p ro secu tiv e o ffice, an d n ot by an a g e n c y o f th e g o v e rn m e n t itself.\nA n In sp e c to r G e n e ra l\xe2\x80\x99s O ffice is an in teg ral p art o f th e ag en cy in w h ic h it is lo c a te d , an d\nits in v estig atio n o f an ag e n c y e m p lo y e e is th u s an alo g o u s to an inv estig atio n o f D e p a r t1\nm ent o f Ju stice em p lo y ees by th e C rim in al D ivision o f th e D e p a rtm e n t o f Ju stice.\n\nJune 18, 1980\nMEMORANDUM OPIN IO N FOR TH E C H IE F COUNSEL,\nNATIONAL HIGHW AY T R A FFIC SAFETY A D M IN ISTRA TIO N\nThis is in response to your request for our views on the authority of\nthe National Highway Traffic Safety Administration (NHTSA) to pro\xc2\xad\nvide outside legal counsel to assist certain of its employees who are\nbeing investigated by the Office of Inspector General of the Depart\xc2\xad\nment of Transportation for possible criminal conduct. We understand\nthat the investigation stems from allegations made by a former em\xc2\xad\nployee of your agency. You state that it appears to NHTSA that its\nemployees were carrying out official policy through activity within the\nscope of their assigned duties and that, in your view, the employees\nwho are the objects of the Inspector General\xe2\x80\x99s investigation were\nengaged in the performance of an agency function during the period in\nquestion.\nAlthough, as you indicated, this Department\xe2\x80\x99s guidelines for its pro\xc2\xad\nvision of legal representation to federal employees, 28 C.F.R. \xc2\xa7\xc2\xa7 50.15\nand 50.16, do not cover the NHTSA personnel under investigation, it\nwill nevertheless be helpful to note the basis of those guidelines.\nSection 50.15 is grounded on this Department\xe2\x80\x99s position that under\nthe authority of 28 U.S.C. \xc2\xa7\xc2\xa7516-517 and 28 U.S.C. \xc2\xa7509 it may in\ngeneral either (1) assign lawyers on its staff to represent a federal\nemployee in legal proceedings in which a civil claim or a criminal\ncharge by a state governmental unit is being asserted against him for\nallegedly wrongful conduct in the discharge of his duties,1 or (2) pay\n1\n28 C .F .R . \xc2\xa750.15 also authorizes this D epartm ent to provide legal representation for a federal\nem ployee in congressional proceedings.\n\n693\n\n\x0cfor private counsel for an employee when a conflict of interest makes it\nimpossible for the Department to represent him. Legal assistance of\neither kind is deemed to be in the interest of the United States within\nthe meaning of 28 U.S.C. \xc2\xa7 517 because establishing the lawfulness of\nauthorized conduct on its behalf is important to the government and\nmaking legal assistance available to employees tends to prevent their\nbeing deterred from the vigorous performance of their tasks by the\nthreat of litigation.\nTurning to your letter, we read it as concluding that it would be in\nthe interest of the United States for NHTSA to provide legal counsel\nfrom its own ranks for the benefit of the employees being investigated.\nYou point out, however, that your staff lawyers would necessarily\nencounter conflicts of interest in serving the employees, and you there\xc2\xad\nfore propose that the Department of Transportation and NHTSA pay\nfor outside counsel to assist them. Thus, there is to some extent a\nparallel between your proposal and action taken by this Department\nunder 28 C.F.R. \xc2\xa750.15. However, there is a divergence between the\ntwo, which leads us to the conclusion that our practice under that\nregulation does not lend support to your position here.\nWhen \xc2\xa750.15 comes into play, the impetus for the adverse action\nagainst the federal employee has come from outside his department or\nagency\xe2\x80\x94that is, from a nongovernmental plaintiff in a civil suit or from\na state prosecutive office. We are not aware of any authority of this\nDepartment under its own governing statutes or other laws that would\npermit it to provide legal representation to a federal employee in\ndisciplinary proceedings instituted by his own department or agency,\nor, for that matter, in any investigation by his department or agency to\ndetermine whether such proceedings, or possibly criminal proceedings,\nshould be instituted. Similarly, we are not aware of any legal authority\nfor a governmental entity itself to furnish such assistance to one of its\nown employees in those circumstances. The interest of the United\nStates in such cases is in ensuring that its employees adhere to the\nstatutory and administrative standards of conduct laid down for their\nobservance. It is one thing for a governmental organization to aid an\nemployee under outside legal attack for actions taken in his official role,\nand another for the organization to aid an employee whom for its own\npart it may suspect of wrongful conduct.\nAt bottom, the question of representation is one that depends upon\nwhether there exists a fair basis for concluding that Congress has\ngranted to your agency the authority to provide counsel to employees\nwho become subject to the type of administrative investigations initi\xc2\xad\nated by your Inspector General. Nothing in the Act establishing the\nOffice of Inspector General for the Department of Transportation\ngrants that authority, and the only authority you have cited in the\nlegislation generally governing the Department of Transportation is the\n694\n\n\x0cgeneral housekeeping provision that empowers the hiring of contrac\xc2\xad\ntors. See 5 U.S.C. \xc2\xa7 3109; 49 U.S.C. \xc2\xa7 1657. The contracting statutes do\nnot, however, provide the substantive authority you seek; in general,\nthey only provide a method of procedure for carrying into effect\npowers elsewhere granted. In the absence of explicit authority, this\nDepartment has adhered to the principle\xe2\x80\x94also reflected in recent\nComptroller General opinions\xe2\x80\x94that authority to retain counsel may be\nimplied where the employee\xe2\x80\x99s official conduct has been attacked and\nprosecuted by an individual outside the agency.\nThis distinction is exemplified in a recent Comptroller General opin\xc2\xad\nion, Comp. Gen. Op. B-193536, June 18, 1979, which ruled that an\nagency could not properly reimburse an employee for legal fees paid in\ndefending himself in agency proceedings against him on charges of\nmisconduct which, although initially raised by an outside party, were\nnot pursued by the latter but by the agency itself on the basis of its\nindependent determination to investigate the employee\xe2\x80\x99s conduct. The\nopinion distinguished that situation from the one in an earlier opinion,\nComp. Gen. Op. B -127945, April 5, 1979, involving a hearing, required\nby an agency\xe2\x80\x99s regulations, of charges of misconduct by two of its\nemployees in the performance of their official duties where the charges\nwere initiated and pursued in the prescribed administrative forum by a\nprivate party. The Comptroller General concluded in B -127945 that the\nagency could properly expend its appropriations for the provision of\nprivate legal services to the employees, absent the possibility of repre\xc2\xad\nsentation provided by the Attorney General or its own legal staff. The\nlater opinion, B-193536, supra, noted specifically that in B-127945 and\nother cases in which the Comptroller General had approved such\nexpenditures, \xe2\x80\x9cthe conduct of the Federal employees was brought into\nissue and pursued by a third party and not by the Government itself.\xe2\x80\x9d\nB-193536, p. 6.\nWe have considered your suggestion that an investigation by your\ndepartment\xe2\x80\x99s Office of Inspector General seems more analagous to the\ncase of an outside party challenging the actions of an agency employee,\nthan to an internal agency proceeding where the interests of the agency\nand its employee conflict. It is true that an Inspector General appointed\nand serving under the Inspector General Act of 1978 is largely free of\ncontrol by the head of his department or agency in relation to his\ninvestigative functions. Nevertheless, he is an integral part of his de\xc2\xad\npartment or agency, is selected by and serves at the pleasure of the\nPresident, and performs duties that are carried out in lesser degree in\nall sizable organizations of the federal government. We have been\nunable to find, either in the statutory structure of Inspector General\noffices or in the legislative history of that Act, evidence of the unique\nstatus you have suggested. Because we cannot equate the position of\nthe Inspector General in the current investigation of NHTSA employ695\n\n\x0cees to that of an outside party making charges against them, we are of\nthe opinion that neither your department nor NHTSA may retain and\ncompensate private lawyers to serve the employees being investigated\nby the Inspector General.\nThis investigation of NHTSA employees by the Department of\nTransportation\xe2\x80\x99s Inspector General is analogous, in our view, to an\ninvestigation of Department of Justice employees by the Criminal Divi\xc2\xad\nsion of the Department of Justice. Although the Department can some\xc2\xad\ntimes provide representation for Justice employees who are defendants\nin civil cases or state criminal proceedings, as a general rule it has\nauthority to provide such representation only after it has determined\ninstitutionally that the employees are being asked to answer for legally\ndefensible conduct in the course and scope of their federal duties and\nthat a defense of their conduct on the merits will therefore be tanta\xc2\xad\nmount to a defense of the United States itself, a legal entity that can act\nonly through its agents. But when the Criminal Division initiates a\ncriminal investigation of one of our own employees, the Department\ncannot have made that determination. The very purpose of the investi\xc2\xad\ngation is to make it\xe2\x80\x94to decide what a defense of the interests of the\nUnited States requires, be it prosecution, exoneration, or something in\nbetween; and it is for that reason that the Department cannot provide a\ndefense of personal interests in the investigation itself.2\nJ ohn M. H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n2\nIn unusual situations this D epartm ent may, during the pendency o f a crim inal investigation,\nprovide representation for g o v ernm ent em ployees, including D epartm ent o f Justice employees, w ho\nare defendants in civil actions bro u g h t by persons outside the governm ent. In these situations it is\npossible for the D epartm ent to determ ine that it will be in the interests o f the U nited States to provide\na provisional defense for the em ployees (and hence the U nited States) until the results o f the criminal\ninvestigation are know n. But this determ ination does not perm it th e D epartm ent to provide the\nem ployees w ith representation (either directly o r through private counsel) for the purpose o f defend\xc2\xad\ning th eir personal interests against th e governm ent itself in the crim inal investigation. From the\nstandpoint o f defending the interests o f the U nited States, such a defense is either unauthorized or\nprem ature. T h e same conclusion must be reached w ith respect to the investigative activities o f an\nIn sp ecto r G eneral.\n\n696\n\n\x0c"


b'Whether the Defense of Marriage Act Precludes the\nNonbiological Child of a Member of a Vermont Civil\nUnion From Qualifying for Child\xe2\x80\x99s Insurance\nBenefits Under the Social Security Act\nThe Defense of Marriage Act would not prevent the non-biological child of a partner in a Vermont civil\nunion from receiving child\xe2\x80\x99s insurance benefits under the Social Security Act.\n\nOctober 16, 2007\n\nMEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL\nSOCIAL SECURITY ADMINISTRATION\nThe Social Security Act defines a \xe2\x80\x9cchild\xe2\x80\x9d for the purpose of determining eligibility for child\xe2\x80\x99s insurance benefits (\xe2\x80\x9cCIB\xe2\x80\x9d) by reference to the inheritance law in\nthe relevant state. 42 U.S.C. \xc2\xa7 416(h)(2) (2000). The law provides that a child shall\nreceive CIB on account of a disabled parent when the child would inherit as a son\nor daughter if the parent were to die intestate. Id. Vermont law provides that the\nparties to a same-sex civil union enjoy the same benefits of parentage laws that\nwould apply to a married couple, and so the natural child of one member of the\nunion may be deemed to be the child of the other member for purposes of intestacy\nunder Vermont law. Vt. Stat. Ann. tit. 15, \xc2\xa7 1204; see also Miller-Jenkins v.\nMiller-Jenkins, 912 A.2d 951, 970 (Vt. 2006).\nYou have asked whether the Defense of Marriage Act (\xe2\x80\x9cDOMA\xe2\x80\x9d), Pub. L. No.\n104-199, 110 Stat. 2419 (1996), would prevent the Commissioner of Social\nSecurity (the \xe2\x80\x9cCommissioner\xe2\x80\x9d) from providing the non-biological child of one\nmember of a Vermont civil union with social security benefits on account of that\nindividual\xe2\x80\x99s relationship with the child. 1 We conclude that it would not. Although\nDOMA limits the definition of \xe2\x80\x9cmarriage\xe2\x80\x9d and \xe2\x80\x9cspouse\xe2\x80\x9d for purposes of federal\nlaw, the Social Security Act does not condition eligibility for CIB on the existence\nof a marriage or on the federal rights of a spouse in the circumstances of this case;\nrather, eligibility turns upon the state\xe2\x80\x99s recognition of a parent-child relationship,\nand specifically, the right to inherit as a child under state law. A child\xe2\x80\x99s inheritance rights under state law may be independent of the existence of a marriage or\nspousal relationship, and that is indeed the case in Vermont. Accordingly, we\nconclude that nothing in DOMA would prevent the non-biological child of a\n\n1\n\nSee Letter for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal\nCounsel, from Thomas W. Crawley, Acting General Counsel, Social Security Administration (June 6,\n2007) (\xe2\x80\x9cSSA Letter\xe2\x80\x9d). We are informed that the Commissioner has agreed to be bound by the opinion\nof this Office. See E-mail for John P. Elwood, Deputy Assistant Attorney General, Office of Legal\nCounsel, from Thomas W. Crawley, Acting General Counsel, Social Security Administration (June 29,\n2007, 12:16 EST).\n\n243\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\npartner in a Vermont civil union from receiving CIB under the Social Security\nAct.\nI.\nTwo women, Karen and Monique, entered into a civil union under Vermont\nlaw in 2002, and Monique gave birth to a son, Elijah, in 2003. Karen did not\nformally adopt Elijah, but she appears on the birth certificate as his \xe2\x80\x9c2nd parent\xe2\x80\x9d\nand on other documents as his \xe2\x80\x9ccivil union parent.\xe2\x80\x9d See SSA Letter at 1. In 2005,\nthe Commissioner found Karen to be eligible for disability benefits, and she then\nfiled an application for CIB on behalf of Elijah. Id. At the time of the application,\nKaren was domiciled in Vermont. Id. at 2. In order to determine whether federal\nlaw would allow Elijah to qualify as Karen\xe2\x80\x99s \xe2\x80\x9cchild\xe2\x80\x9d on account of her civil union\nwith Elijah\xe2\x80\x99s natural mother, we first consider whether Elijah would qualify as\nKaren\xe2\x80\x99s \xe2\x80\x9cchild\xe2\x80\x9d under 42 U.S.C. \xc2\xa7 416(e)(1). We then consider whether the\ninterpretive principle mandated by DOMA affects Elijah\xe2\x80\x99s status under the Social\nSecurity Act.\nThe Social Security Act provides that an applicant may be eligible for CIB if he\nis the dependent \xe2\x80\x9cchild\xe2\x80\x9d of an individual entitled to disability benefits. 42 U.S.C.\n\xc2\xa7 402(d) (2000). The Act defines \xe2\x80\x9cchild\xe2\x80\x9d to include \xe2\x80\x9cthe child or legally adopted\nchild of an individual,\xe2\x80\x9d as well as stepchildren and, in some cases, grandchildren.\nId. \xc2\xa7 416(e)(1). In many, if not most, cases the existence of a parent-child relationship must be established under the provisions of section 416(h) that further define\nthe relationship for CIB purposes.\nWith respect to Elijah\xe2\x80\x99s relationship to Karen, the Act directs the Commissioner to look to how the relevant state would define the parent-child relationship for\npurposes of inheritance law. Specifically, the Act provides:\n[T]he Commissioner of Social Security shall apply such law as\nwould be applied in determining the devolution of intestate personal\nproperty by the courts of the State in which such insured individual\nis domiciled at the time such applicant files application . . . . Applicants who according to such law would have the same status relative\nto taking intestate personal property as a child . . . shall be deemed\nsuch.\n42 U.S.C. \xc2\xa7 416(h)(2)(A). The Commissioner has issued regulations tracking this\nstatutory provision, and they provide, in relevant part, that a \xe2\x80\x9cnatural child\xe2\x80\x9d shall\nbe defined based on \xe2\x80\x9cthe law on inheritance rights that the State courts would use\nto decide whether [the individual] could inherit a child\xe2\x80\x99s share of the insured\xe2\x80\x99s\npersonal property if the insured were to die without leaving a will.\xe2\x80\x9d 20 C.F.R.\n\xc2\xa7 404.355(b)(1) (2007). Where, as here, the insured is living, the Commissioner\n\n244\n\n\x0cNonbiological Child of a Member of a Vermont Civil Union\n\n\xe2\x80\x9clook[s] to the laws of the State where the insured has his or her permanent\nhome.\xe2\x80\x9d Id.\nBecause Karen was domiciled in Vermont at the time of Elijah\xe2\x80\x99s application,\nwe look to Vermont law for guidance. The Vermont statute addressing intestate\nsuccession provides that the \xe2\x80\x9cestate of a decedent, not devised nor bequeathed and\nnot otherwise appropriated and distributed in pursuance of law, shall descend\xe2\x80\x9d in\nthe first instance \xe2\x80\x9cto the children of such decedent or the legal representatives of\ndeceased children,\xe2\x80\x9d but the statute does not otherwise define \xe2\x80\x9cchildren.\xe2\x80\x9d Vt. Stat.\nAnn. tit. 14, \xc2\xa7 551(1); see also Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951,\n969 (Vt. 2006) (recognizing that under Vermont law, \xe2\x80\x9cthe term \xe2\x80\x98parent\xe2\x80\x99 is specific\nto the context of the family involved\xe2\x80\x9d and has been principally defined through\njudicial precedent). The civil union statute provides broadly that parties to a civil\nunion shall have \xe2\x80\x9call the same benefits, protections and responsibilities under\nlaw . . . as are granted to spouses in a marriage,\xe2\x80\x9d Vt. Stat. Ann. tit. 15, \xc2\xa7 1204(a),\nincluding \xe2\x80\x9claws relating to . . . intestate succession,\xe2\x80\x9d id. \xc2\xa7 1204(e)(1). The statute\nfurther provides that parties to a civil union shall enjoy the same rights, \xe2\x80\x9cwith\nrespect to a child of whom either becomes the natural parent during the term of the\ncivil union,\xe2\x80\x9d as \xe2\x80\x9cthose of a married couple.\xe2\x80\x9d Id. \xc2\xa7 1204(f).\nThe Vermont Supreme Court recently relied upon these provisions to hold that\na child, like Elijah, who is born to one partner of a civil union during the existence\nof the civil union, should be deemed the child of the other partner under Vermont\nlaw for purposes of determining custodial rights following the dissolution of the\ncivil union. Miller-Jenkins, 912 A.2d at 969\xe2\x80\x9370. 2 The court reasoned that in the\ncontext of marriage, courts have regularly found that a child born by artificial\ninsemination should be deemed to be the child of the husband, even if there is no\nbiological connection. Such holdings followed the intent of the spouses in the\nmarriage, ensured that the child would have two parents, and avoided the need for\nrequiring adoption proceedings in every case. Id. Because section 1204 requires\nequal treatment of partners in civil unions, the court held that the same result\nshould apply to the non-biological partner in a civil union. Id. at 970\xe2\x80\x9371.\nAlthough Miller-Jenkins recognized the parent-child relationship in the context\nof custodial rights, we see no reason why Vermont courts would reach a different\nresult when considering who would constitute a child for purposes of inheritance.\nThe Vermont civil union statute makes clear that a partner in a civil union shall\nenjoy not merely the \xe2\x80\x9crights\xe2\x80\x9d that a married person would enjoy, but more broadly\nall \xe2\x80\x9cbenefits, protections and responsibilities under law.\xe2\x80\x9d Vt. Stat. Ann. tit. 15,\n2\n\nIn addition, the Vermont Supreme Court identified certain factors to support its conclusion,\nincluding the following: the parties to the civil union expected and intended for the non-biological\nparent to be the child\xe2\x80\x99s parent, the non-biological partner participated in the artificial insemination\ndecision, and no other individual had a claim to be the child\xe2\x80\x99s parent. Id. at 970. In Elijah\xe2\x80\x99s case, it is\napparent from the birth certificate and other documents that the partners to the civil union intended for\nKaren to be his parent. See SSA Letter at 1.\n\n245\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\n\xc2\xa7 1204(a). With respect to civil union partners, these \xe2\x80\x9cbenefits, protections and\nresponsibilities\xe2\x80\x9d specifically include both bequeathing and inheriting property,\nshould one partner die intestate. Id. \xc2\xa7 1204(e)(1). Insofar as Vermont law further\nseeks to place partners in a civil union on equal footing with married couples with\nrespect to children, see id. \xc2\xa7 1204(f), we believe that Vermont courts similarly\nwould conclude that the property of a partner in a civil union who dies intestate\nwould descend on the same terms as it would for a married person, and in\nparticular, would go to those who would be recognized as his or her children under\nVermont law. Accordingly, as applied here, we conclude that Vermont law would\nrecognize Elijah as Karen\xe2\x80\x99s child for purposes of his right to inherit, should she die\nintestate.\nII.\nThe question remains whether DOMA would prevent the Commissioner from\notherwise recognizing Elijah as a beneficiary under the Social Security Act.\nCongress enacted DOMA in response to the decision of the Hawaii Supreme Court\nin Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), which held that the equal protection\nguarantee of that state\xe2\x80\x99s constitution required the recognition of same-sex marriage. See H.R. Rep. No. 104-664, at 3\xe2\x80\x934 (1996) (\xe2\x80\x9cHouse Report\xe2\x80\x9d). DOMA seeks\nto ensure that neither the federal government nor individual states are forced to\ngive legal effect to same-sex marriages, either on account of one state\xe2\x80\x99s recognizing such a marriage or by the judicial interpretation of existing law. See id. at 2. At\nthe same time, DOMA respects states\xe2\x80\x99 traditional rights in the arena of domestic\nrelations, allowing them to establish their own public policies with respect to\nsame-sex unions. See id. 3\nDOMA contains two operative provisions. The first provision, codified at 28\nU.S.C. \xc2\xa7 1738C (2000), provides that a state need not give full faith and credit to\n\xe2\x80\x9ca relationship between persons of the same sex that is treated as a marriage\xe2\x80\x9d\nunder the laws of another state. That provision, which provides that each state may\nadopt its own public policy with respect to same-sex marriage, is not implicated\nhere. It is the second provision of DOMA, codified at 1 U.S.C. \xc2\xa7 7, that arguably\nmight bear upon Elijah\xe2\x80\x99s entitlement to CIB under the Social Security Act. This\nsection, 1 U.S.C. \xc2\xa7 7, was added to the Dictionary Act, 1 U.S.C. \xc2\xa7\xc2\xa7 1 et seq., to\n\n3\n\nThe House Report described DOMA as having \xe2\x80\x9ctwo primary purposes\xe2\x80\x9d:\nThe first is to defend the institution of traditional heterosexual marriage. The second is\nto protect the right of the States to formulate their own public policy regarding the legal recognition of same-sex unions, free from any federal constitutional implications\nthat might attend the recognition by one State of the right for homosexual couples to\nacquire marriage licenses.\n\nId. at 2.\n\n246\n\n\x0cNonbiological Child of a Member of a Vermont Civil Union\n\ndefine \xe2\x80\x9cmarriage\xe2\x80\x9d and \xe2\x80\x9cspouse\xe2\x80\x9d for purposes of federal statutes and regulations as\nfollows:\nIn determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word \xe2\x80\x9cmarriage\xe2\x80\x9d means\nonly a legal union between one man and one woman as husband and\nwife, and the word \xe2\x80\x9cspouse\xe2\x80\x9d refers only to a person of the opposite\nsex who is a husband or a wife.\n1 U.S.C. \xc2\xa7 7. This section reflects a federal policy against interpreting any federal\nlaw, regulation, or other administrative act so as to afford legal consequence to\nsame-sex marriages. The provision defines \xe2\x80\x9cmarriage\xe2\x80\x9d and \xe2\x80\x9cspouse\xe2\x80\x9d for those\npurposes so as to exclude reading those terms to extend to same-sex relationships.\nBy its terms, 1 U.S.C. \xc2\xa7 7 does not apply to Elijah\xe2\x80\x99s eligibility for CIB under\nthe Social Security Act. As discussed, Elijah\xe2\x80\x99s eligibility arises out of his status as\nKaren\xe2\x80\x99s \xe2\x80\x9cchild\xe2\x80\x9d under section 416, and the law provides that he \xe2\x80\x9cshall be deemed\nsuch\xe2\x80\x9d simply because he \xe2\x80\x9cwould have the same status relative to taking intestate\npersonal property as a child\xe2\x80\x9d under Vermont law. 42 U.S.C. \xc2\xa7 416(h)(2)(A). That\nanalysis does not require any interpretation of the words \xe2\x80\x9cmarriage\xe2\x80\x9d or \xe2\x80\x9cspouse\xe2\x80\x9d\nunder the Social Security Act or any other provision of federal law. Nor does the\nanalysis even require interpreting those terms under Vermont law in a way that\nmight have consequence for the administration of federal benefits. An individual\nmay qualify as a \xe2\x80\x9cchild\xe2\x80\x9d under section 416 wholly apart from the existence of any\nmarriage at all, as would be the case of a natural-born child of an unmarried\ncouple, or, as is the case here, where Vermont recognizes a parent-child relationship outside the context of marriage. The fact that Elijah\xe2\x80\x99s right of inheritance\nultimately derives from Vermont\xe2\x80\x99s recognition of a same-sex civil union is simply\nimmaterial under DOMA. Accordingly, DOMA would not preclude Elijah from\nqualifying for CIB as a child of Karen under the Social Security Act.\nSTEVEN A. ENGEL\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n247\n\n\x0c'