BACKGROUND
On May 19, 2014, the Federal District Court for the District of Oregon, issued an
opinion and order in Geiger v. Kitzhaber, -- F.Supp.2d --, 2014 WL 2054264 (D.Or., May 19, 2014), holding that Article 15,
section 5A, of the Oregon Constitution, which defined marriage as a union composed
of “one man and one woman,” violated the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution and was therefore void and unenforceable.
Id. at *16. The Court further held that Oregon’s marriage laws were unenforceable to
the extent that they would prohibit a person from marrying another person of the same
gender, or would deny same-gender couples the right to marry with full and equal recognition,
attendant rights, benefits, privileges, obligations, responsibilities, and immunities
of marriage, where the couple would be otherwise qualified to marry under Oregon law.
Id. The Order was effective immediately upon filing. Id.
QUESTIONS PRESENTED
We are providing this legal opinion in accordance with 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 provides that when a state legalizes same-sex marriage, the Regional Office should
obtain a Regional Chief Counsel opinion requesting 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) Any change to the status of a 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 a same-sex marriage.
POMS RM 10212.035(D).
DISCUSSION
(1) The date the State began issuing marriage licenses and certificates to same-sex
couples.
May 19, 2014. The Court permanently enjoined Oregon officials from enforcing Article
15, section 5A, of the Oregon Constitution along with enforcing or applying those
statutes—or any other state or local law, rule, regulation, or ordinance—as a basis
to deny marriage to same-gender couples otherwise qualified to marry in Oregon. Geiger, 2014 WL 2054264, at *16. The Order was effective immediately upon filing, which
occurred on May 19, 2014. Id. That same day the State began issuing marriage licenses to same-sex couples. See http://public.health.oregon.gov/BirthDeathCertificates/RegisterVitalRecords/Pages/marriagefaq.aspx; see also https://multco.us/multnomah-county-home/news/multnomah-county-begins-issuing-marriage-licenses-same-sex-couples.
(2) Whether the State permits parties to the same-sex marriage to change their names
based on the marriage.
The State should permit parties to same-sex marriages to change their names based
on the marriage. Pursuant to the district court’s opinion and order, there must be
no legal distinction between same-sex married couples and opposite-sex married couples
with respect to marriage under Oregon law. The Court permanently enjoined Oregon officials
from denying married same-gender couples any of the rights, benefits, privileges,
obligations, responsibilities, and immunities that accompany marriage in Oregon. Geiger, 2014 WL 2054264, at *16.
Oregon recognizes marriage as a legal basis for a name change. Or. Rev. Stat. § 106.220
(2013). Accordingly, as of the district court’s opinion and order, same-sex married
couples should be able to change their names based upon their marriage.
It should be noted that Multnomah County, Oregon, allowed same-sex marriages in 2004
and those marriages were voided by the Oregon State Supreme Court. Li v. State, 110 P.3d 91 (Or. 2005). The Geiger opinion and order is not retroactive. Geiger, 2014 WL 2054264, at *16. Those marriages remain voided, and any couple would need
to marry after May 19, 2014, to be considered legally married.
(3) Any change to the status of a prior or new civil union or domestic partnership
entered into in the same State.
The Geiger opinion and order only addresses same-sex marriages. It does not discuss the status
of domestic partnerships, which are established under a separate law. Or. Rev. Stat.
§§ 106.300 et seq. Accordingly, the state of Oregon continues to recognize domestic partnerships.
(4) Whether a civil union or domestic partnership entered prior to the Geiger decision must be dissolved before entering a same-sex marriage.
As of the date of this legal opinion, the state of Oregon is advising its citizens
that a dissolution of a domestic partnership will not be required if the same-sex
partners want to be married. See http://public.health.oregon.gov/BirthDeathCertificates/RegisterVitalRecords/Pages/marriagefaq.aspx. However, dissolution of the domestic partnership must occur before either party
could marry someone else. Id.
PROPOSED LANGUAGE FOR POMS RM 10212.035
We propose adding new language to POMS RM 10212.035(A) regarding Oregon’s recognition of same-sex marriage for purposes of name change:
Beginning 05/19/14, the date of the District Court for the District of Oregon’s opinion
and order in Geiger v. Kitzhaber, -- F.Supp.2d --, 2014 WL 2054264 (D.Or., May 19, 2014), you should accept marriage
documents issued by Oregon to same-sex couples for marriages that took place in Oregon
on 05/19/14 or later as evidence of a name change.
POMS RM 10212.035(A) should also reference this precedent opinion.