QUESTION PRESENTED
Kansas recognized same-sex marriage on November 12, 2014, and began issuing same-sex
marriage licenses on November 13, 2014.[1] Should SSA accept marriage documents issued to same-sex couples in Kansas as evidence
of a name-change event?
SUMMARY
Yes. SSA should accept marriage documents issued to same-sex couples in Kansas on
November 13, 2014, and thereafter, as evidence of a name-change event.
BACKGROUND
On June 25, 2014 and July 18, 2014, the United States Court of Appeals for the Tenth
Circuit affirmed district court decisions finding that Utah and Oklahoma’s bans on
same-sex marriage were unconstitutional. See Kitchen v. Herbert, 755 F.3d 1193, 1229-30 (10th Cir. 2014) (Utah); Bishop v. Smith, 760 F.3d 1070, 1074 (10th Cir. 2014) (Oklahoma). The court imposed stays in both
cases pending appeal. See Kitchen, 755 F.3d at 1230; Bishop, 760 F.3d at 1096. On October 6, 2014, the United States Supreme Court declined to
hear either appeal, letting stand the Tenth Circuit’s decisions that Utah and Oklahoma’s
bans on same-sex marriage were unconstitutional. See Herbert v. Kitchen, 135 S.Ct. 265, 190 L.Ed.2d 138 (Oct. 06, 2014); Smith v. Bishop, 135 S.Ct. 271, 190 LE.d.2d 139 (Oct. 6, 2014).
Based on the United States Supreme Court’s refusal to hear the Kitchen and Bishop appeals, Chief District Judge Kevin Moriarty of Johnson County, Kansas, issued an
administrative order allowing marriage licenses to be issued to same-sex couples on
October 8, 2014. See State of Kansas ex rel. v. Moriarty, No. 112,590, Petition for Issuance of Writ of Mandamus and Request for Immediate
Relief, at 1, 2, Ex. A (filed Oct. 10, 2014) (attached).[2] On October 10, 2015, the Kansas Attorney General filed a petition for a writ of mandamus
and request for an injunction to vacate the administrative order and to prevent the
issuance of same-sex marriage licenses. See id. at 1, 5-6. The same day, the Kansas Supreme Court issued a temporary injunction suspending
Judge Moriarty’s order. See Moriarty, Stay Order (Kan. Oct. 10, 2014) (available at http://www.kscourts.org/cases-and-opinions/opinions/SupCt/2014/20141010/112590.pdf).
On November 4, 2014, the United States District Court for the District of Kansas held
that Kansas’ same-sex marriage ban violated the Fourteenth Amendment to the United
States Constitution. See Marie v. Moser, 65 F. Supp. 3d 1175, 1185 (D. Kan. 2014) (citing Kitchen). The Tenth Circuit Court of Appeals and Supreme Court of the United States denied
state officials’ request for a stay pending appeal. See Marie v. Moser, No. 14-3246, Doc. 01019337192 (10th Cir. Nov. 7, 2014) (attached); Moser v. Marie, 135 S. Ct. 511, 190 L. Ed. 2d 385 (Nov. 12, 2014).
Based on the Marie ruling, on November 13, 2014, some Kansas counties began issuing same-sex marriages
licenses. See Moriarty, Order Lifting Stay (Kan. Nov. 18, 2014) (attached). On November 18, 2014, the Kansas Supreme Court in Moriarty held that district court judges act “within [their] jurisdiction” when deciding whether
to authorize or to not authorize the issuance of same-sex marriage licenses within
their respective counties. See id. at 4-5. A majority of Kansas counties issued same-sex marriage licenses, while other
counties refused or did not receive any requests. See Marriage Update Chart, Equality Kansas, dated Feb. 9, 2015, available at http://eqks.org/marriage-update-february-9-2015/. Meanwhile, the state of Kansas did not permit name changes based on same-sex marriage.
See, e.g., Marie v. Mosier, 122 F. Supp.3d 1085, 1093, 1096, 1098, 1104-05 (D. Kan. Aug. 10, 2015).
On June 26, 2015, the United States Supreme Court issued a decision in Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584 (2015) holding that the Fourteenth Amendment of the
United States Constitution requires a state to permit a marriage between two people
of the same sex and to recognize a valid out-of-state marriage between two people
of the same sex. See Obergefell, 135 S.Ct. at 2604-05. By June 30, 2015, all Kansas counties allowed same-sex marriage
licenses. See All counties in Kansas allowing same-sex marriage licenses, but state not yet
allowing names changes, joint tax returns, Lawrence Journal World, June 30, 2015, available at http://www2.ljworld.com/news/2015/jun/30/most-counties-kansas-allowing-same-sex-marriage-li/. On August 10, 2015, the United States District Court for the District of Kansas held
that refusal to permit same-sex spouses to obtain driver’s licenses in their married
names in the same manner as opposite-sex spouses violated the Fourteenth Amendment
to the United States Constitution. See Marie, 122 F. Supp. 3d at 1113.
ANALYSIS
For SSA to process a name change, the applicant must submit evidence of: (1) a name-change
event; (2) the new name; and (3) the number holder’s identity as shown on the latest
Numident record. See POMS RM 10212.015. This opinion focuses only on the first evidentiary requirement: the name-change
event. The POMS recognizes that marriages are name-change events. See POMS RM 10212.010. Moreover, SSA policy requires the agency to accept same-sex marriage documents validly
issued by a state that permits ceremonial same-sex marriage as evidence of a name
change. See POMS RM 10212.035.
Pursuant to Section D of POMS RM 10212.035, when a state legalizes same-sex marriage, the Regional Office should obtain a legal
opinion from the Regional Chief Counsel requesting the following information, which
we discuss below:
1. The date the State will begin issuing marriage licenses and certificates to same-sex
couples;
2. Whether the State permits parties to the same-sex marriage to change their names
based on the marriage;
3. Any change to the status of prior or new civil union or domestic partnership entered
into in the same State; and
4. Whether a prior entered civil union and domestic partnership must be dissolved
before entering into a same-sex marriage.
1. The date the State will begin issuing marriage licenses and certificates to same-sex
couples.
Some counties in Kansas began issuing same-sex marriage licenses on November 13, 2014.
By June 30, 2015, all Kansas counties allowed same-sex marriage licenses. SSA should
treat documents reflecting same-sex marriages that occurred in Kansas on November
13, 2014, and thereafter, as valid for purposes of establishing a name-change event.[3]
2. Whether the State permits parties to the same-sex marriage to change their names
based on the marriage.
Kansas statutes provide for name changes pursuant to marriage.[4] See Kan. Stat. Ann. § 23-2506 (allowing a person, at the time of marriage, to designate
the legal name by which the person shall subsequently be known). The person’s name
at the time of the application for the license, as well as the newly designated name,
shall be recorded on the marriage license. See id. The change to the person’s new legal name is effective upon the endorsement of the
certificate of marriage on the person’s marriage license by the person who performed
the ceremony. See id.
Kansas accepts marriage certificates as proof of name change for the purpose of obtaining
a driver’s license or nondrivers’ identification. See Kan. Stat. Ann. §§ 8-246, 8-1326; see also http://www.ksrevenue.org/dmvproof.html. Based on various court decisions noted above, it is clear that Kansas statutes, which
provide for name changes pursuant to marriage, apply equally to same-sex and opposite-sex
couples. Therefore, SSA should accept same-sex marriage documents issued in Kansas
on November 13, 2014, and thereafter, as evidence of a name change.
3. Any change to the status of prior or new civil union or domestic partnership entered
into in the same State.
In addition to defining marriage as between one man and one woman only, Kansas’ Defense
of Marriage Amendment to the Kansas Constitution, Article 15, Section 16, also provided
that no relationship, other than a marriage, shall be recognized by the state as entitling
the parties to the rights or incidents of marriage. Thus, Kansas law did not provide
for the statewide recognition of civil unions or domestic partnerships. Accordingly,
this question is inapplicable.[5]
4. Whether a prior entered civil union and domestic partnership must be dissolved
before entering into a same-sex marriage.
Because the state of Kansas has never had a law authorizing or recognizing civil unions
or domestic partnerships, this question is inapplicable.
CONCLUSION
SSA should accept Kansas same-sex marriage documents issued on November 13, 2014,
and thereafter, as evidence of a name-change event.
Lisa A. Thomas
Acting Chief Counsel, Region VII
By: Ellie Dorothy
Assistant Regional Counsel