Brief Summary
The Civil Marriage Protection Act, enacted on March 1, 2012, and approved by voters
in a referendum on November 6, 2012, allows same-sex couples to marry as of January
1, 2013. After December 6, 2012, when the Governor formally declared that the voters
approved the legislation, state officials could begin issuing marriage licenses to
same sex couples as long as the license bears an effective date no earlier than January
1, 2013. Furthermore, if a license is issued early with an effective date of January
1, 2013, the earliest a same-sex couple can have a marriage ceremony performed is
January 1, 2013, because the waiting period will have been satisfied.
The Maryland Attorney General has issued guidance indicating that if same-sex couples
were previously legally married in another state, they are unable to obtain a license
in Maryland without first dissolving their previous union because they remain legally
married. However, if a same-sex couple entered into a civil union together in another
jurisdiction or a domestic partnership in Maryland, [1] they may legally marry in Maryland without dissolving their previous union.
Questions Presented
We are providing this advice in accordance with the Program Operations Manual System
(POMS) RM 10212.035, Evidence of a Name Change based on a U.S. Same-Sex Marriage. [2] Section D of RM 10212.035 provides that when a State legalizes same-sex marriages, an opinion from the Regional
Chief Counsel should be obtained regarding the following information:
-
(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)
whether a prior entered civil union or domestic partnership must be dissolved before
entering into a same-sex marriage; and
-
(4)
any change to the status of a prior or new civil union or domestic partnership entered
into in the same State.
Discussion
1) The date the State will begin issuing marriage licenses and certificates to same-sex
couples.
The Civil Marriage Protection Act, which was enacted on March 1, 2012, was approved
by a referendum on November 6, 2012. On December 6, 2012, the Governor of Maryland,
Martin O~, formally issued a proclamation declaring that the legislation was approved
by voters. Although this legislation provides that same-sex couples can be licensed
to marry on January 1, 2013, the Maryland Attorney General, Douglas , has interpreted
this legislation to permit same-sex couples to be issued marriage licenses any time
after the Governor’s proclamation as long as the license bears an effective date no
earlier than January 1, 2013. [3] Questions Relating to Implementation of Chapter 2 of the Maryland Laws of 2012, 97
Op. MD Att’y Gen. 72 (Nov. 29, 2012). [4]
2) Whether the State permits parties to the same-sex marriage to change their names
based on the marriage.
The State of Maryland permits parties to a same-sex marriage to change their names
based on the marriage in the same manner as any other person changing his or her name
due to marriage. [5] Although Maryland has a civil process for a name change in which a party can petition
for a court-ordered name change pursuant to MD Rules, Rule 15-901 (West 2012), these
formal procedures are not required for a name change following a marriage. Stuart v. Bd. of Supervisors of Elections for Howard County 266 Md. 440, 295 A.2d 223 (1972).
Maryland statutes do not specifically permit a name change following a marriage by
merely using the married name and producing a marriage license. Nevertheless, our
office has confirmed with Dawne, the Clerk of Court for Allegany County, that the
State of Maryland actually allows this practice. For example, name changes following
a marriage are routinely performed by changing one’s name with the MVA and then using
the new name. [6] Dawne also confirmed that a party to a same-sex marriage may change his or her name
based upon the marriage as has been the practice for parties who marry persons of
the opposite sex.
At the request of Amy, Clerk of Court for Dorchester County, Sharon and David of the
Department of Legal Affairs, Administrative Office of the Courts, prepared a memorandum
dated December 13, 2012, addressing the issue of whether a person who enters into
in a same-sex marriage in Maryland has the ability to change his or her name legally
to that of his or her same-sex spouse. Memorandum from the Dep’t of Legal Affairs,
Admin. Office of the Courts (Dec. 13, 2012) (on file with undersigned). The memorandum
clarified that the Civil Marriage Protection Act would give a person who enters into
a same-sex marriage in Maryland the ability to change his or her name to that of his
or her same-sex spouse when the law takes effect on January 1, 2013.
3) Whether a previously entered into same-sex marriage, civil union, or domestic partnership
between the parties must be dissolved before the parties can enter into a same-sex
marriage in Maryland.
The Maryland Attorney General has issued guidance to the clerks of the various circuit
courts in Maryland regarding the ability of couples who have previously entered into
a union in another state – whether it be a domestic partnership, a civil union, or
a same-sex marriage – to obtain a marriage license and be married in Maryland without
first dissolving their previous union. Questions Relating to Implementation of Chapter
2 of the Maryland Laws of 2012, 97 Op. MD Att’y Gen. 72 (Nov. 29, 2012). Specifically,
the Attorney General explained that same-sex couples, if already legally married in
another state, may not get a marriage license in Maryland. Id. Instead, same-sex couples who were legally married in other states prior to the adoption
of same-sex marriage in Maryland remain legally married, and thus, unable to obtain
a license under Maryland law without first obtaining a divorce. Id.
However, with regard to a “civil union” entered into in a state that allows that contract,
the Attorney General concluded, “Nothing in either current law or Chapter 2 prevents
a marriage between parties who are already in a civil union entered into in another
state.” Id; see also Md. Code Ann., Fam. Law, § 2-402(b) (West 2012) (requiring applicants for a marriage
license to state the “marital status of each party” and “whether each party was married
previously and the date and place of each death or judicial determination that ended
any former marriage.”) (emphasis added).
The Attorney General further explained that the Maryland Legislature, in enacting
Chapter 2, did not address the legal effect of out-of-state civil unions and in-state
domestic partnerships on a same-sex couple’s ability to marry each other in Maryland.
Id. Therefore, in absence of language expressly prohibiting parties to a civil union
or domestic partnership from entering into a Maryland marriage, the Attorney General
determined that the plain text reading of Chapter 2 would yield the conclusion that
the parties may do so. Id.
In fact, the Attorney General indicated that, in cases in which same-sex couples previously
entered into a Maryland domestic partnership, it is even clearer that the parties
may marry under Chapter 2 because the rights afforded domestic partners under Maryland
law are a subset of those afforded married couples. Id; see generally Md. Code Ann., Health-Gen. § 6-201 through 6-203 (West 2012). Notably, Maryland’s
domestic partnership law, enacted in 2008, permits “two individuals” to enter into
a domestic partnership who “are not married or in a civil union or domestic partnership
with another individual” Md. Code Ann., Health-Gen. § 6-101 (a) (West 2012). The Attorney
General clarified that under the existing Maryland domestic partnership law, parties
who are already in a marriage, civil union, or domestic partnership may not form a
new domestic partnership “with another individual,” but apparently may do so with
their existing partner. [7] Id.
4) Whether there is any change to the status in prior or new domestic partnerships
entered into in the same state.
Finally, with regard to your question regarding any change in status of prior or new
domestic partnerships entered into in Maryland, we note that Maryland’s domestic partnership
legislation has not been repealed [8] and neither the same-sex marriage legislation, nor the Attorney General opinion addresses
any changes to the status of such partnerships. Therefore, we conclude that new domestic
partnerships can be created in Maryland and that there is no change in status of prior
domestic partnerships.
Eric P. Kressman
Regional Chief Counsel
By: _______________
Tara A. Czekaj
Assistant Regional Counsel