TN 54 (03-20)
A. South Dakota Same-Sex Marriage - Name Change Guidance (PL 16-02)
Date: January 22, 2019
1. Syllabus
Accept marriage documents issued to same-sex couples for marriages that took place
on June 26, 2015, or later, by jurisdictions (town, county or State) in the State
of South Dakota as evidence of a name change.
2. Opinion
QUESTION PRESENTED
South Dakota recognized same-sex marriage on June 26, 2015, and began issuing same-sex
marriage licenses the same day. Should SSA accept marriage documents issued to same-sex
couples in South Dakota as evidence of a name-change event?
SUMMARY
Yes. SSA should accept marriage documents issued to same-sex couples in South Dakota
on June 26, 2015, and thereafter, as evidence of a name-change event.
BACKGROUND
On January 12, 2015, a federal district court judge held that South Dakota’s ban on
same-sex marriage (see S.D. Const. art. 21 § 9; S.D. Codified Laws §§ 25-1-1, 25-1-38) was unconstitutional.
See Rosenbrahn v.
Daugaard, 61 F. Supp. 3d 862 (D. S.D. 2015). The decision was stayed pending appeal. See id. at 877. On June 26, 2015, while the appeal was still pending, the U.S. Supreme Court
held in a separate case that same-sex couples may exercise the fundamental right to
marry under the United States Constitution. See Obergefell
v. Hodges , 576 U.S. ___,135 S. Ct. 2584, 2604-05 (2015). The Court held State laws invalid
to the extent they exclude same-sex couples from civil marriage on the same terms
and conditions as opposite-sex couples. Id. at 2605. The Court also reasoned that having required all States to marry same-sex
couples, “[i]t follows that the Court also must hold—and it now does hold—that there
is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed
in another State on the ground of its same-sex character.” Id . at 2607-08. Based on the Supreme Court’s decision in Obergefell , the Eighth Circuit Court of Appeals later affirmed the federal district court’s
prior ruling that South Dakota’s ban on same-sex marriage was unconstitutional. See Rosenbraun v. Daugaard, 799 F.3d 918 (8th Cir. 2015).
ANALYSIS
For SSA to process a name change, the applicant must submit evidence of: (1) a name-change
event; (2) the new name; and (3) the number holder’s identity as shown on the latest
Numident record. See Program Operations Manual System (POMS) RM 10212.015. This opinion focuses only on the first evidentiary requirement: the name-change
event. The POMS recognizes that marriages are name-change events. See POMS RM 10212.010. Moreover, SSA policy requires the agency to accept same-sex marriage documents validly
issued by a state that permits ceremonial same-sex marriage as evidence of a name
change. See POMS RM 10212.035.
Pursuant to Section D of POMS RM 10212.035, considerations for evaluating whether to accept same-sex marriage documents as evidence
of a name change include:
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 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 into a same-sex marriage.
1. The date the State will begin issuing marriage licenses and certificates to
same-sex couples.
South Dakota began allowing same-sex marriage licenses to be issued on June 26, 2015.
SSA should treat documents reflecting same-sex marriages that occurred in South Dakota
on June 26, 2015, and thereafter as valid for purposes of establishing a name-change
event.
2. Whether the State permits parties to the same-sex marriage to change their names
based on the marriage.
South Dakota permits parties to change their names based on marriage. In general,
South Dakota allows its residents to change their names for “proper and reasonable
cause” by court order. See S.D. Codified Laws §§ 21‑37-1 to 21-37-5. With regard to whether marriage documents
support a request for a name change, the South Dakota statutes do not expressly address
this issue except to allow family members to file a single petition for a court-ordered
name change based on marriage. See S.D. Codified Laws § 21-37-3.1 (“Persons who are married pursuant to § 25-1-1 and
any natural or adopted child of either person may file one petition for change of
name.”). However, South Dakota does accept marriage certificates as proof of a name
change for the purpose of changing the name on an individual’s driver’s license. See https://dps.sd.gov/driver-licensing/required-documents (last visited Dec. 26, 2018). These rules do not specifically refer to same-sex marriages.
See Rosenbrahn, 799 F.3d at 922 (finding that Obergefell decision did not render case moot since it did not reach all issues raised by the
plaintiffs, including name changes on South Dakota driver’s licenses). However, the
court decisions Obergefell and Rosenbrahn hold that there can be no legal distinction between same‑sex married couples and
opposite-sex married couples with respect to marriage. Therefore, SSA should accept
same-sex marriage documents issued in South Dakota on June 26, 2015, and thereafter
as evidence of a name-change event.
3. Any change to the status of prior or new civil union or domestic partnership
entered into in the same State.
Because South Dakota has never had a law authorizing or recognizing civil unions or
domestic partnerships, this question is inapplicable.
4. Whether a prior entered civil union and domestic partnership must be dissolved
before entering into a same-sex marriage.
Because South Dakota began allowing same-sex marriage by virtue of judicial action,
it has not been established whether a prior civil union (from another state) must
be dissolved before entering into a same-sex marriage in South Dakota. We will update
this opinion if the issue is settled by legislation or a court decision. In the meantime,
if you become aware of a case involving a same-sex marriage where a party to the marriage
entered a civil union with someone else (not a party to the marriage) and the civil
union was not dissolved, refer the case to the Regional Office for a legal opinion
from the Office of the Regional Chief Counsel.
CONCLUSION
SSA should accept South Dakota same-sex marriage documents issued on June 26, 2015,
and thereafter, as evidence of a name-change event.
Chief Counsel, Region VIII
Assistant Regional Counsel