SUMMARY
On June 28, 2013, California again began authorizing the issuance of marriage licenses
to same-sex couples. Therefore, the Social Security Administration (SSA) should accept
California marriage certificates issued to same-sex couples, between June 17, 2008
and November 4, 2008, or after June 27, 2013, as valid evidence of a name change.
BACKGROUND
Effective March 8, 2000, California amended its Family Code to provide that a marriage
is only valid between a man and a woman. Cal. Fam. Code § 308.5. However, in May 2008,
the California Supreme Court held that same-sex couples had the right to marry. In Re Marriage Cases, 43 Cal. 4th 183, 183 P.3d 384 (Cal. 2008). In November 2008, California voters passed
Proposition 8, which amended the California Constitution to provide that “[o]nly marriage
between a man and a woman is valid or recognized in California.” Cal. Const. Art.
I, § 7.5; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). On August 4, 2010, the District Court
for the Northern District of California held that Proposition 8 was unconstitutional
under both the Due Process and Equal Protection Clauses of the United States Constitution.
Id. at 1004. However, the Ninth Circuit granted a stay on August 16, 2010, pending resolution
of an appeal. See Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug. 16, 2010) (order). Upon review, the Ninth Circuit
held that the people of California violated the Equal Protection Clause by “using
their initiative power to target a minority group and withdraw a right that it possessed,
without a legitimate reason for doing so,” and that Proposition 8 was unconstitutional
on this basis. Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012). On June 26, 2013, the United States Supreme
Court held that the proponents of Proposition 8 did not have standing to appeal, upholding
the district court’s order declaring the proposition unconstitutional. See Hollingsworth v. Perry, 133 S.Ct. 2652 (2013).
On June 28, 2013, the Ninth Circuit dissolved its stay in P~, “effective immediately.” Perry v. Brown, No. 10-16696, -- F.3d --, 2013 WL 3305447 (9th Cir. June 28, 2013). California state
officials construed the lifting of the stay as indication that same-sex marriage in
California was legal and permitted. See Ruling by the U.S. Supreme Court Regarding Same-Sex Marriages, Cal. Dept. of Pub. Health (June 28, 2013) (State Registrar’s Message to County Clerks),
available at http://gov.ca.gov/docs/DPH_Letter.pdf (“same-sex marriage is again legal in California. Effective immediately, county clerks shall issue marriage licenses to same-sex couples
in California”) (emphasis in original); Attorney General Kamala D. Harris Celebrates Marriage Equality, press release from the Office of the Attorney General, State of Cal. Dept. of Justice
(June 26, 2013), available at http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-celebrates-marriage-equality-asks-ninth-circuit (“The Supreme Court’s historic ruling in Hollingsworth v. Perry means that same-sex couples have the fundamental right to be legally married in all
of California’s 58 counties.”). [2]
Even prior to the H~ ruling, California recognized the validity of same-sex marriages performed prior
to the effective date of Proposition 8. On June 17, 2008, after the California Supreme
Court’s ruling in re Marriage Cases, California counties began issuing same-sex marriage certificates. These same-sex
marriage certificates were legally issued until November 5, 2008, the effective date
of Proposition 8. In Straus v. Horton, 46 Cal.4th 364, 385, 474 (Cal. 2009), the California Supreme Court held that Proposition
8’s ban on same-sex marriage did not apply retroactively to invalidate an estimated
18,000 same-sex marriages entered into between June 17, 2008 and November 5, 2008.
Id.; see also POMS RM 10212.035(A)(1) (accepting marriage documents issued to same-sex couples
for purposes of a name change if the marriage took place between June 17, 2008 and
November 4, 2008).
Accordingly, same-sex marriages were legal in California from June 17, 2008 to November
4, 2008; and again are legal on and after June 28, 2013.
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 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.
As detailed above, with the lifting of the Ninth Circuit’s stay in P~, same-sex marriages became legal again in California on June 28, 2013. P~, 2013 WL 3305447. Further, California continues to recognize as valid same-sex marriages
entered between June 17, 2008 and November 4, 2008. S~, 46 Cal. 4th at 385.
We advise that POMS RM 10212.035(A)(1) be amended to reflect this change in California law. Currently, the relevant
provision states “Accept marriage documents issued to same-sex couples for marriages
that took place between 06/17/08 and 11/04/08…” We recommend revising this language
to accept marriage documents issued to same-sex couples “between 06/17/08 and 11/04/08, or after 06/27/13…”
The California Department of Public Health issued a message to county clerks on June 28,
2013, providing further guidance. See State Registrar’s Message to County Clerks. For example, California will recognize same-sex couples legally married in another
jurisdiction as already legally married under California law, and will not issue these
couples new marriage licenses. Id. (citing Cal. Fam. Code §§ 301-302, 500, which allow for only unmarried persons to
wed in California).
2. Whether the State permits parties to the same-sex marriage to change their names
based on the marriage?
Yes. Effective January 1, 2009, the California Name Equality Act of 2007 provides
that parties to a marriage may elect to change their middle or last names to adopt
the last name of the other party. Cal. Fam. Code § 306.5; see also POMS PR 02712.006 (specifically addressing provisions of the California Name Equality Act of 2007).
The name-change provisions do not distinguish between same-sex and opposite sex marriages.
“For SSA’s purposes, as of January 1, 2009, a marriage license application electing a new name as allowed
by the law and a certified copy of the marriage certificate containing the new name
are acceptable evidence of a legal name change.” POMS PR 02712.006. Moreover, in providing
that domestic partners have the right to elect the last name of the other domestic
partner, it is apparent that the California legislature intended that the name change
provisions be applied equally to same-sex couples. See Cal. Fam. Code § 298.6 (providing that one or both parties of a registered domestic
partnership may elect to change his or her middle or last names to adopt the last
name of the other domestic partner); POMS PR 02707.006(B) (addressing the California Name Equality Act as it pertains to domestic partnerships).
Therefore, the agency may accept the same name-change documentation for same-sex marriages
as it would accept for opposite sex marriages.
3. Whether a prior entered civil union or domestic partnership must be dissolved before
entering into a same-sex marriage?
No. The California Department of Public Health’s June 28, 2013 message states that
county clerks may issue a marriage certificate to a same-sex couple that is already
in a domestic partnership, so long as they have not already legally married in another
jurisdiction. See State Registrar’s Message to County Clerks. As discussed above in answer to Question 2, the domestic partnership could also
be a basis for a legal name change in California.
4. Any change to the status of a prior or new civil union or domestic partnership
entered into in the same State.
None. Domestic partnerships continue to exist as a form of legal union between same-sex
and opposite sex couples even after the Supreme Court’s ruling in H~ See Cal. Fam. Code § 297; see also State Registrar’s Message to County Clerks (“People who are currently in a State Registered Domestic Partnership (SRDP) may be issued a marriage license”) (emphasis added). Registered domestic partners continue
to have the same rights, protections, and benefits as married spouses under California
law. Cal. Fam. Code § 297.5. Moreover, a domestic partnership may continue to exist
even after the domestic partners enter into a marriage if the partners did not dissolve
the partnership as provided by California law. See Estate of W~, 211 Cal. App. 4th 1284, 1296 & n.7 (Cal. App. 2012) (holding that the same-sex couple’s
domestic partnership remained in effect after their 2008 marriage because they did
not dissolve their domestic partnership pursuant to section 299 of the Family Code,
and recognizing that a number of same-sex couples marrying in 2008 before the passage
of Proposition 8 would be both a married couple and domestic partners); see also Cal. Fam. Code § 299 (procedures for terminating a domestic partnership).