VERNOFF v. ASTRUE, 08-55049

In Vernoff v. Astrue 9 Cir No. 08-55049, the 9th Circuit Court, June 17, upheld a decision by the Social Security Administration [SSA] not to award survivor benefits to the artificially conceived son of California resident Gabriela Vernoff.  The child was born three years after the death of Vernoff’s husband via artificial insemination.  Vernoff then filed claim with the SSA seeking child-survivor benefits for the child-survivor benefits for her son and mother-of-survivor benefits for herself.   SSA denied her claim. Vernoff appealed to an administrative law judge who upheld the SSA’s decision.   She then appealed to the District Court.

The 9th Circuit Court had recently decided in Gillett-Netting (9 Cir 2004) 371 F.3d 593 that posthumously conceived children are eligible for SSA survivor benefits, but the Court affirmed the SSA’s decision in Vernoff asserting that the child was not dependent on the father when he died.  Unlike in Gillett, which was decided in Arizona where a biological tie is sufficient to establish paternity, California law requires a relationship between father and son.   The Court discarded Vernoff’s argument that intestacy laws established a parental link noting that Vernoff’s husband did not agree to the posthumous conception, and that the conception took place three years after his death, thus disqualifying the child from intestate inheritance.

The court’s decision can be found here.

The California Supreme Court, May 29, determined 6-1 in re Strauss v. Horton (S168047) that Proposition 8, the 2008 constitutional amendment which simply states that “Only marriage between a man and a woman is valid or recognized in California,” is a legal amendment.

Prop 8, passed by 52% of the voters last November, was put on the ballot in response to a prior supreme court decision in re Marriage Cases (2008) 43 Cal.4th 757 . The Court then upheld the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”

The Supreme Court affirmed the constitutionality of the amendment, arguing that Prop 8 does not fundamentally alter the meaning or the substance of state constitutional equal protection principles. Only the designation “marriage” is reserved from same-sex couples. All other protections granted under the law are undisturbed, the court decided.

The Court did not, however, overturn the thousands of marriages created between the Marriage Cases decision and the passing of Prop 8. It was determined that the Court has a duty to interpret and enforce California’s Constitution in its current form, not as it was when the court decided Marriage Cases.

As the lone dissenter, Justice J. Moreno said, “requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus ‘represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.’”

Justice Moreno concluded, “Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons.”

On the day of the Strauss v. Horton decision, the American Foundation for Equal Rights filed suit in U.S. District Court for the Northern District of California to challenge the validity of Proposition 8. The American Foundation for Equal Rights also filed a preliminary injunction that would, if successful, immediately restore same-sex marriage in California until the federal suit is decided.