TN 54 (03-20)

PR 02712.046 South Dakota

A. South Dakota Same-Sex Marriage - Name Change Guidance (PL 16-02)

Date: January 22, 2019

1. Syllabus

Accept marriage documents issued to same-sex couples for marriages that took place on June 26, 2015, or later, by jurisdictions (town, county or State) in the State of South Dakota as evidence of a name change.

2. Opinion

QUESTION PRESENTED

South Dakota recognized same-sex marriage on June 26, 2015, and began issuing same-sex marriage licenses the same day. Should SSA accept marriage documents issued to same-sex couples in South Dakota as evidence of a name-change event?

SUMMARY

Yes. SSA should accept marriage documents issued to same-sex couples in South Dakota on June 26, 2015, and thereafter, as evidence of a name-change event.

BACKGROUND

On January 12, 2015, a federal district court judge held that South Dakota’s ban on same-sex marriage (see S.D. Const. art. 21 § 9; S.D. Codified Laws §§ 25-1-1, 25-1-38) was unconstitutional. See Rosenbrahn v. Daugaard, 61 F. Supp. 3d 862 (D. S.D. 2015). The decision was stayed pending appeal. See id. at 877. On June 26, 2015, while the appeal was still pending, the U.S. Supreme Court held in a separate case that same-sex couples may exercise the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges , 576 U.S. ___,135 S. Ct. 2584, 2604-05 (2015). The Court held State laws invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id. at 2605. The Court also reasoned that having required all States to marry same-sex couples, “[i]t follows that the Court also must hold—and it now does hold—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 2607-08. Based on the Supreme Court’s decision in Obergefell , the Eighth Circuit Court of Appeals later affirmed the federal district court’s prior ruling that South Dakota’s ban on same-sex marriage was unconstitutional. See Rosenbraun v. Daugaard, 799 F.3d 918 (8th Cir. 2015).

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 Program Operations Manual System (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, considerations for evaluating whether to accept same-sex marriage documents as evidence of a name change include:

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.

South Dakota began allowing same-sex marriage licenses to be issued on June 26, 2015. SSA should treat documents reflecting same-sex marriages that occurred in South Dakota on June 26, 2015, and thereafter as valid for purposes of establishing a name-change event.

2. Whether the State permits parties to the same-sex marriage to change their names based on the marriage.

South Dakota permits parties to change their names based on marriage. In general, South Dakota allows its residents to change their names for “proper and reasonable cause” by court order. See S.D. Codified Laws §§ 21‑37-1 to 21-37-5. With regard to whether marriage documents support a request for a name change, the South Dakota statutes do not expressly address this issue except to allow family members to file a single petition for a court-ordered name change based on marriage. See S.D. Codified Laws § 21-37-3.1 (“Persons who are married pursuant to § 25-1-1 and any natural or adopted child of either person may file one petition for change of name.”). However, South Dakota does accept marriage certificates as proof of a name change for the purpose of changing the name on an individual’s driver’s license. See https://dps.sd.gov/driver-licensing/required-documents (last visited Dec. 26, 2018). These rules do not specifically refer to same-sex marriages. See Rosenbrahn, 799 F.3d at 922 (finding that Obergefell decision did not render case moot since it did not reach all issues raised by the plaintiffs, including name changes on South Dakota driver’s licenses). However, the court decisions Obergefell and Rosenbrahn hold that there can be no legal distinction between same‑sex married couples and opposite-sex married couples with respect to marriage. Therefore, SSA should accept same-sex marriage documents issued in South Dakota on June 26, 2015, and thereafter as evidence of a name-change event.

3. Any change to the status of prior or new civil union or domestic partnership entered into in the same State.

Because South Dakota has never had a law authorizing or recognizing civil unions or domestic partnerships, this question is inapplicable.

4. Whether a prior entered civil union and domestic partnership must be dissolved before entering into a same-sex marriage.

Because South Dakota began allowing same-sex marriage by virtue of judicial action, it has not been established whether a prior civil union (from another state) must be dissolved before entering into a same-sex marriage in South Dakota. We will update this opinion if the issue is settled by legislation or a court decision. In the meantime, if you become aware of a case involving a same-sex marriage where a party to the marriage entered a civil union with someone else (not a party to the marriage) and the civil union was not dissolved, refer the case to the Regional Office for a legal opinion from the Office of the Regional Chief Counsel.

CONCLUSION

SSA should accept South Dakota same-sex marriage documents issued on June 26, 2015, and thereafter, as evidence of a name-change event.

Chief Counsel, Region VIII

Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1502712046
PR 02712.046 - South Dakota - 03/10/2020
Batch run: 03/10/2020
Rev:03/10/2020