What today’s US Supreme Court ruling in Astrue v. Capato might mean for children of LGBT parents
May 21, 2012 – by Nancy Polikoff – Beyond (Straight and Gay) Marriage
In a unanimous opinion written by Justice Ruth Bader Ginsburg, the US Supreme Court today weighed in on how the Social Security Act defines “child” for purposes of receiving survivor’s benefits when a covered employee dies. Karen Capato was seeking such benefits for twins born 18 months after the death of her husband, Robert. The twins were conceived by IVF after Robert’s death using semen he had frozen before this death specifically for that purpose.
Karen claimed the children were entitled to benefits because they inherently met the definition of “child” since they were the biological children of married parents. The Social Security Administration (SSA) looked to a separate statutory provision and ruled that the determination of eligibility rested in state intestacy law; if the children could inherit from Robert if he died without a will then they were eligible for benefits. Under the law in Robert’s domicile at the time of his death — Florida — children conceived post-death do not inherit without a will, so the twins were not Robert’s children for purposes of receiving benefits.
In Astrue v. Capato, the Supreme Court ruled in favor of the SSA. Although I generally favor expansive distribution of benefits and novel claims as to what makes a parent, I found the opinion satisfying on a number of levels. First, Karen’s claim was that the children were so obviously Robert’s children that it was inappropriate to look at any other part of the statute, including the intestacy test, for a definition. Why was this so obvious? Because, Karen argued, they were the biological children of married parents. I took great pleasure in Justice Ginsburg’s criticism of that argument. Karen tried to claim that it was unconstitutional to distinguish between children conceived pre- and post-death, but Justice Ginsburg virtually chastised Karen for arguing that the SSA should “eliminate the intestacy test only for biological children of married parents.” (emphasis in original!) Justice Ginsburg clearly did not think highly of Karen asking the Court to distinguish between “children whose parents were married and children whose parents’ liaisons were not blessed by clergy or the State.”