Brief Summary
On May 20, 2014, the Middle District of Pennsylvania issued an opinion in Whitewood v.Wolf, No. 1:13-1861, 992 F. Supp.2d 410, 2014 WL 2058105 (M.D.Pa. May 20, 2014), holding
that Pennsylvania’s marriage laws prohibiting same-sex marriage and prohibiting recognizing
same-sex marriages validly entered into in other jurisdictions were unconstitutional.
Accordingly, as of May 20, 2014, the Social Security Administration should accept
Pennsylvania’s marriage license certificates as valid evidence of a name change. [2]
Background
On May 20, 2014, a federal district court issued an opinion in the case of Whitewood v. Wolf, No. 1:13-1861, 992 F. Supp.2d 410, 2014 WL 2058105 (M.D.Pa. May 20, 2014) holding
that Pennsylvania’s marriage laws, 23 Pa. Cons. Stat. Ann. §§ 1102 [3] and 1704 [4] violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment
to the Constitution. Accordingly, the court entered an order permanently enjoining
the enforcement of these laws stating “By virtue of this ruling, same-sex couples
who seek to marry in Pennsylvania may do so, and already married same-sex couples
will be recognized as such in the Commonwealth.” Whitewood, 2014 WL 2058105 at *16.
On May 21, 2014, the Governor of Pennsylvania, Tom Corbett, announced that that he
would not appeal the district court’s ruling striking down Pennsylvania’s same-sex
marriage ban. See Greg Bothelho, PA Governor Won’t
Challenge Overturning of Same-Sex Marriage Ban, (May 21, 2014, 6:33 AM), http://www.cnn.com/2014/05/21/us/pennsylvania-same-sex-marriage/. Previously, in July 2013, the Pennsylvania Attorney General, Kathleen Kane, refused
to defend the governor and the Secretary of Health in the Whitewood matter on ethical grounds because she believed that the Pennsylvania Defense of Marriage
Act was unconstitutional. See Pennsylvania Attorney General, http://www.attorneygeneral.gov/press.aspx?id=7771 (last visited June 10, 2014). Accordingly, we do not anticipate that any party with
standing will appeal the federal court ruling.
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. 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 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 Pennsylvania will begin issuing marriage licenses and certificates to same-sex
couples. [5]
In the Whitewood decision, the Middle District of Pennsylvania court issued an order permanently enjoining
the enforcement of the Pennsylvania statutes barring same-sex marriage and the recognition
of same-sex marriages entered into in other jurisdictions. In the May 20, 2014 decision,
the court stated, “By virtue of this ruling, same-sex couples who seek to marry in
Pennsylvania may do so, and already married same-sex couples will be recognized as
such in the Commonwealth.” Whitewood, 2014 WL 2058105 at *16. As discussed there was no stay issued in this case and the
Governor and Attorney General have indicated that they will not appeal this decision.
Therefore, as of May 20, 2014, Pennsylvania has issued marriage licenses to same-sex
couples.
Pennsylvania has a three-day waiting period after applying for a marriage license
before the license can be issued. 23 Pa. Cons. Stat. Ann. § 1303(a) (West 2014). However,
the waiting period can be waived and, in fact, has been waived to permit same-sex
couples to marry sooner. 23 Pa. Cons. Stat. Ann. § 1303(b)(1) (West 2014) (stating
“the court may authorize a license to be issued at any time after the making of the
application… in cases of emergency or extraordinary circumstances); see also Kaitlynn Riely, Allegheny County Marries Its First Same-Sex Couple Amid Smiles, Tears
(May 21, 2014 11:26 PM) http://www.post-gazette.com/local/city/2014/05/21/Same-sex-couples/stories/201405210151 (stating that a waiver of the waiting period was issued for a same-sex couple in
Allegheny County). Therefore, in accordance with the Whitewood decision, marriage licenses and certificates may be issued as of May 20, 2014. [6]
-
(2)
Whether Pennsylvania permits parties to the same-sex marriage to change their names
based on the marriage.
Yes. Pursuant to the Whitewood decision, no legal distinction exists between same-sex married couples and opposite-sex
married couples with respect to marriage under Pennsylvania laws (holding that the
classification imposed by Pennsylvania’s marriage laws based upon sexual orientation
is not substantially related to an important governmental interest and, therefore,
unconstitutional). Whitewood, 2014 WL 2058105 at *15. Accordingly, as of May 20, 2014, the date of the Whitewood decision, same-sex married couples may change their names based upon their marriage
to the same extent as opposite-sex married couples.
Although Pennsylvania has a civil process for a name change in which a party can petition
for a court-ordered name change pursuant to 54 Pa. C.S.A. §701(West 2014), these formal
procedures are not required for a name change following a marriage. Pennsylvania statutes
do not specifically authorize a name change following marriage by using the married
name and producing a marriage license when required. Nevertheless, in practice, Pennsylvania
historically allows the bride to change her name officially by signing her new married
name on her marriage certificate. Michael Rosensaft, The Right of Men to Change Their Names Upon
Marriage, 5 U. Pa. J. Const. L. 186, n. 10 (2002) citing 23 Pa. C.S.A. § 1501 (West 2014). In addition, we have confirmed this practice with
the Pennsylvania Department of Motor Vehicles (DMV) by telephone and through the forms
that the DMV requires to be submitted for a name change. See PA Dept. of Transportation, Application for Change of a Non-Commercial Driver’s License
(available at http://www.dmv.state.pa.us/pdotforms/dl_forms/dl-80.pdf) (last visited Jun. 10, 2014) (stating that additional documentation is required
if a party desires to use a name other than his or her (1) birth name, (2) spouse’s
surname, or (3) a name given though a Court Order).
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(3)
Whether a prior entered civil union or domestic partnership must be dissolved before
entering into a same-sex marriage.
Pennsylvania law does not provide for civil unions or domestic partnerships. However,
there are several municipalities in Pennsylvania that have enacted ordinances recognizing
domestic partnerships. These include, These municipalities provide a variety of benefits,
typically health care/employee benefits, hospital visitation privileges, and sometimes
allow partners to transfer property to the other partner without having to pay city
real estate transaction fees.
The termination procedures for these domestic partnerships vary and, in many cases,
do not address contingency of legalization of same-sex marriage in Pennsylvania. Only
two of the municipalities, Allentown and Easton, provide that if same-sex marriage
became legal in Pennsylvania the parties would have 90 days of continued coverage
to allow them to marry. The Code of the City of Easton provides that if Pennsylvania
recognized same-sex marriages that the ordinance would become null and void after
a 90-day period to allow the parties to marry. [7] Although the City of Allentown did not specifically indicate that the domestic partnerships
would dissolve automatically after the 90 day period, it is reasonable to assume that
the domestic partnerships would dissolve after 90 days of continued coverage and do
not need to be dissolved to enter into a same-sex marriage. Although the remainder
of the local ordinances do not address the legalization of same-sex marriages, presumably
these domestic partnerships recognized by local ordinances would not need to be dissolved
prior to entering into a same-sex marriage in the Commonwealth of Pennsylvania.
-
(4)
Whether there is any change to the status of a prior or new civil union or domestic
partnership entered into in the same State.
As Pennsylvania law does not provide for civil unions or domestic partnerships, this
question is inapplicable. However, to the extent that there are domestic partnerships
recognized by municipalities, the legalization of same-sex marriage is not addressed
in these ordinances other than in Allentown and Easton as explained above. Therefore,
it is unclear what, if any, impact the legalization of same-sex marriage in Pennsylvania
will have on local laws that do not contain provisions addressing this contingency.