BACKGROUND
On May 13, 2014, the United States District Court for the District of Idaho struck
down Idaho’s statutory and constitutional bans on same-sex marriage within the state,
and on recognition of out-of-state same-sex marriages, finding that these bans denied
gay and lesbian citizens the fundamental right to marry. Latta v. Otter, No. 1:13-cv-482-CWD, 2014 U.S. Dist. LEXIS 66417 (D. Idaho May 13, 2014). The Ninth
Circuit Court of Appeals granted a temporary stay of the district court’s order pending
appeal. See Latta v. Otter, Nos. 14-35420 and 14-35421, 2014 U.S. App. LEXIS 16057 (9th Cir. May 20, 2014).
On October 7, 2014, the court of appeals affirmed the district court. Latta v. Otter, Nos. 14-35420 and 1435421, 2014 U.S. App. LEXIS 19152 (9th Cir. Oct. 7, 2014). The
state petitioned the Supreme Court for a stay of the circuit court’s order; Justice
Antony Kennedy granted an emergency stay on October 8, 2014, pending consideration
of the stay by the entire court. Otter v. Latta, 190 L. Ed. 2d 244 (2014). However, the entire Supreme Court, on October 10, 2014,
denied the state’s petition. 190 L. Ed. 2d 245 (2014). On October 15, 2014, the circuit
court lifted its stay of the district court’s judgment, making same-sex marriage,
and recognition of out-of-state same-sex marriages, legal in Idaho as of that date.
[1]
QUESTIONS PRESENTED
We are providing this legal opinion under the Program Operations Manual System (POMS)
Records Maintenance (RM) 10212.035, Evidence of a Name Change based on a U.S. Same-Sex
Marriage. Section D of RM
10212.035 requires the Regional Office to obtain a Regional Chief Counsel opinion when same-sex
marriage becomes legal in a state. The issues covered by this POMS provision are as
follows:
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I.
The date the State will begin issuing marriage licenses and certificates to same-sex
couples;
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II.
Whether the State permits parties to the same-sex marriage to change their names based
on the marriage;
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III.
Any change to the status of a prior or new civil union or domestic partnership entered
into in the same State; and
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IV.
Whether a prior entered civil union and domestic partnership must be dissolved before
entering a same-sex marriage.
DISCUSSION
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I.
The date the state will begin issuing marriage licenses and certificates to same-sex
couples.
Though the district court ruling came down in May 2014, the circuit court’s stay was
in effect until October 15, 2014. Once that stay lapsed, there was no further legal
impediment to same-sex marriage in Idaho. Idaho law has no provision for a waiting
period between the application for and issuance of a marriage license. Therefore,
the state could issue marriage licenses to same-sex couples effective October 15,
2014.
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II.
Whether the state permits parties to a same-sex marriage to change their names based
on the marriage.
A same-sex marriage in Idaho may be the basis for a name change.
Marriage is an accepted basis for changing one’s name in Idaho. The marriage license
contains the names of the parties being married, but does not mandate a particular
married name. See Idaho Code § 32-401 (2014) (contents of marriage license). However, the marriage
certificate, or a certified copy thereof, is accepted “in all courts and places as
presumptive evidence of the fact of such marriage.” Idaho Code § 32-309 (2014). Moreover,
state regulations for the issuance of driver’s licenses acknowledge that one’s legal
name may change due to marriage. Idaho Admin. Code 39.02.75.200.01(a). These regulations
allow either party of a marriage to adopt the last name of the other party, or any
combination of the names as a hyphenate. Idaho Admin. Code 39.02.75.200.05. Therefore,
a marriage certificate serves as a valid document for a name change. This is consistent
with State of Idaho guidance on changing one’s name after marriage. “Marriage—Idaho.gov”
http://www.idaho.gov/family_records/marriage.html (last visited Nov. 21, 2014). This is also consistent with agency policy, which provides
a change of name can be based on a validly issued marriage certificate from any state
in the nation, so long as the new name can be derived from the names on the certificate.
POMS RM 10212.055(B).
The Ninth Circuit held in Latta that the denial of marriage to same-sex couples amounted to a denial of equal protection
under the Fourteenth Amendment. Latta, 2014 U.S. App. LEXIS 19152, *48–50. It follows that, in allowing same-sex couples
to marry, the state would allow all the same rights, privileges, and responsibilities
afforded opposite-sex couples.
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III.
Any change to the status of a prior or new civil union or domestic partnership entered
into in the same state.
This issue is inapplicable because, prior to Latta, Idaho recognized a marriage between a man and a woman as the only valid form of
domestic union. Idaho Const. Art. III, § 28. This constitutional provision was “intended
to prohibit the State of Idaho, or any of its political subdivisions, from granting
any or all of the legal benefits of marriage to civil unions, domestic partnerships,
or any other relationship that attempts to approximate marriage.” Id. Thus, there were no in-state civil unions or domestic partnerships.
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IV.
Whether a prior entered civil union and domestic partnership must be dissolved before
entering a same-sex marriage.
For the same reason as point III, supra, this issue does not apply to Idaho. Since there were no civil unions or domestic
partnerships in Idaho, there is nothing to dissolve. Note, however, that Latta requires the recognition of out-of-state same-sex marriages. Thus, a prior same-sex
civil union or domestic partnership from another state that, under that state’s laws,
is converted to or deemed a marriage, must now be recognized as one. A previous marriage
that has not been dissolved renders void any subsequent marriage entered into in Idaho.
See Idaho Code § 32-207 (2014).