TN 46 (07-16)

PR 02712.005 Arkansas

A. PR 16-119 Arkansas State Law – Marriage Certificate for Same-Sex Couple as Legal Name Change Document -- REPLY

Date: May 4, 2016

1. Syllabus

Accept marriage documents issued to same-sex couples for marriages that took place on May 9, 2014 to May 16, 2014 and on June 26, 2015 or later by jurisdictions (town, county or State) in the State of Arkansas as evidence of a name change.

2. Opinion

SUMMARY

On June 26, 2015, the United States Supreme Court (Supreme Court) issued a decision in Obergefell, et al. v. Hodges, et al., 576 U.S. ___, 135 S.Ct. 2584 (2015) (Obergefell) holding that the Fourteenth Amendment of the United States Constitution requires a state to permit a marriage between two people of the same sex and to recognize a valid out-of-state marriage between two people of the same sex. As a result, on July 2, 2015, the Social Security Administration (SSA) updated the Program Operations Manual System (POMS) Records Maintenance (RM) 10212.035(A) regarding evidence of a name change based on a United States (U.S.) ceremonial same-sex marriage to add Arkansas to the list of states for which same-sex marriage documents as specified are to be accepted as proof of a same-sex marriage for purposes of a name change request.1 Prior to the Obergefell decision, same-sex marriages took place in Arkansas during a discrete period in May 2014 following an Arkansas state court decision. On August 14, 2015, SSA properly updated POMS RM 10212.035(A)(4) for Arkansas to include this discrete period in May 2014 to state: “[a]ccept marriage documents issued to same-sex couples for marriages that took place on May 9, 2014 to May 16, 2014, and on June 26, 2015, or later by jurisdictions (town, county, or State) in the State of Arkansas as evidence of a name change.”

BACKGROUND ON LEGALIZATION OF SAME-SEX MARRIAGE IN ARKANSAS

Historically, Arkansas law prohibited same-sex marriages within Arkansas and prohibited recognition of out-of-state same-sex marriages. See Ark. Const. Amend. 83, § 1; Ark. Code Ann. §§ 9-11-107(b), 9-11-109, 9-11-208. In July 2013, plaintiffs filed lawsuits challenging these laws in state court and in federal district court. See Jernigan, et al. v. Crane, et al., No. 4:13-cv-00410-KGB (E.D. Ark.); Wright, et al. v. State of Arkansas, et al., No. 60CV-13-2662 (Pulaski County Circuit Court).

On May 9, 2014, Pulaski County Circuit Court Judge Christopher Charles Piazza issued an order in Wright, the state case, finding Arkansas’s laws prohibiting same-sex marriage to be unconstitutional. See Wright, et al. v. State of Arkansas, et al., No. 60CV-13-2662 (Pulaski County Circuit Court). Judge Piazza did not issue a stay of his order, and as a result, from May 10 to May 16, 2014, Arkansas county clerks issued over 500 marriage licenses to same-sex couples who were also married during this period pursuant to such licenses. 2 The Arkansas Attorney General and four Arkansas counties appealed Judge Piazza’s orders and filed emergency and expedited motions for stay of the orders with the Arkansas Supreme Court, which the Arkansas Supreme Court granted on May 16, 2014. See Smith, et al. v. Wright, et al., No. CV-14-427 (Ark.). After the Arkansas Supreme Court stayed Judge Piazza’s orders, no further same-sex marriages took place in Arkansas. While the Wright appeal remained pending with the Arkansas Supreme Court, on February 13, 2015, plaintiffs filed a petition for declaratory judgment and injunctive relief in the Circuit Court of Pulaski County, Arkansas seeking recognition of the over 500 same-sex marriages entered into in Arkansas in May 2014 following Judge Piazza’s order in Wright. See Frazier-Henson, et al. v. Walther, et al., No. 60CV-15-569 (Pulaski County Circuit Court) (Frazier-Henson). On June 9, 2015, Circuit Judge Wendell Lee Griffen issued an opinion and order in Frazier-Henson in favor of the plaintiffs and ordered the State to recognize those May 2014 marriages as valid. The Arkansas Attorney General did not appeal this order, and as a result, the Frazier-Henson order requiring the State to recognize the May 2014 same-sex marriages as valid is a final order that is no longer appealable.3

In addition to the state litigation, at the federal level, on November 25, 2014, the U.S. District Court issued a judgment in Jernigan granting the plaintiffs’ request for declaratory and injunctive relief and ruling that Arkansas’s laws prohibiting same-sex marriage were unconstitutional, but also issuing an immediate stay of the ruling until appeal to the Eighth Circuit Court of Appeals. See Jernigan, et al. v. Crane, et al., 64 F.Supp.3d 1260, 1287-1289 (E.D. Ark. Nov. 25, 2014). The defendants appealed the decision to the Eighth Circuit, and on April 29, 2015, the Eighth Circuit entered an order deferring any decision until the Supreme Court issued a decision in Obergefell. See Jernigan, et al. v. Crane, et al., No. 15-1022 (8th Cir. (E.D. Ark.)).

While the appeals remained pending in Wright and Jernigan, on June 26, 2015, the U.S. Supreme Court issued a decision in the same-sex marriage case of Obergefell. Obergefell involved Sixth Circuit appeals arising from four same-sex marriage cases from Michigan, Ohio, Kentucky, and Tennessee, but the Supreme Court’s decision broadly addressed all states’ laws prohibiting same-sex marriage, such as Arkansas. See Obergefell, 576 U.S. ___, 135 S.Ct. at 2593. The Supreme Court held in Obergefell that: (1) “[t]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty” and thus, “same-sex couples may exercise this fundamental right to marry” in all states and states may not deny this liberty; and further, (2) states must recognize lawful same-sex marriages performed in other States. See id. at 2604-2605, 2607-2608. On August 11, 2015, the Eighth Circuit issued a final judgment in Jernigan affirming the district court’s judgment, which had granted the plaintiffs’ request for declaratory and injunctive relief and ruled that Arkansas’s laws prohibiting same-sex marriage were unconstitutional. See Jernigan, et al. v. Crane, et al., 796 F.3d 976 (8th Cir. 2015). The Eighth Circuit determined that per the Supreme Court’s holdings in Obergefell, Arkansas’s same-sex marriage laws were unconstitutional. See id. at 979-980. Accordingly, based on the Supreme Court’s ruling in Obergefell and the Eighth Circuit’s ruling in Jernigan, beginning June 26, 2015, same-sex marriage is legal in Arkansas and Arkansas must recognize valid out-of-state same-sex marriages.

Furthermore, based upon the Arkansas Circuit Courts’ final rulings in Wright and Frazier-Henson, same-sex marriage was legal in Arkansas from May 9 to May 16, 2014. As noted, over 500 same-sex marriages took place in Arkansas pursuant to the Circuit Court’s ruling in Wright before the Arkansas Supreme Court stayed such ruling. Following Obergefell, the Arkansas Supreme Court dismissed the appeal of the Wright case as moot. Thus, the Circuit Court’s decision in Wright that allowed over 500 same-sex marriages to take place in Arkansas during this period in May 2014 stands as a final decision. Moreover, the Circuit Court in Frazier-Henson specifically held that the State must recognize those 500 plus same-sex marriages from May 2014 as valid marriages. Importantly, the Arkansas Attorney General did not appeal the Circuit Court’s order in Frazier-Henson, and thus, such order stands as the final, unchallenged order on the validity of those marriages. Accordingly, based upon these final Circuit Court rulings in Wright and Frazier-Henson, same-sex marriage was legal in Arkansas during the discrete period from May 9 to May 16, 2014.

JULY 2, 2015 AND AUGUST 14, 2015 UPDATES TO POMS RM 10212.035

As stated earlier in this opinion, on July 2, 2015, and August 14, 2015, in light of the Supreme Court’s decision in Obergefell, SSA properly updated POMS RM 10212.035(A) to include Arkansas among the states that permit ceremonial same-sex marriage and to instruct SSA to accept same-sex marriage documents from Arkansas as evidence of a name change for marriages that took place on May 9, 2014 to May 16, 2014, and on June 26, 2015, or later.

QUESTIONS PRESENTED

As noted, the Dallas Regional Office submitted a legal opinion request concerning whether SSA should accept the May 2014 Arkansas same-sex marriage licenses and certificates as evidence for a legal surname change.4 In addition, POMS RM 10212.035(D) provides that when a state legalizes same-sex marriage, the Regional Office should obtain a Regional Chief Counsel opinion addressing the questions provided with each accompanying response below.

DISCUSSION

1) Whether Arkansas permits parties to a same-sex marriage to change their names based on the marriage

Yes. As explained in detail above, pursuant to the Supreme Court’s Obergefell decision and the Eighth Circuit’s Jernigan decision, same-sex marriage is legal in all states, including Arkansas. Furthermore, based upon the Arkansas Circuit Courts’ final rulings in Wright and Frazier-Henson, same-sex marriage was legal in Arkansas from May 9 to May 16, 2014. As a result, for same-sex couples married in Arkansas between May 9 to May 16, 2014, and on June 26, 2015, or later, no legal distinction exists between same-sex married couples and opposite-sex married couples with respect to marriage under Arkansas’s laws. Thus, same-sex married couples in Arkansas may change their names based upon their marriage to the same extent as opposite-sex married couples.

Arkansas law allows for name changes based upon marriage. Under Arkansas common law, an adult individual can change his or her name at will for any reason, without any legal proceedings, provided such a name change is not for fraudulent purposes. See Clinton v. Morrow, 247 S.W.2d 1015, 1017-1018 (Ark. 1952). In addition, Arkansas statutory law concerning name changes provides that a person may, for good reason shown, obtain a court order changing his or her name. See Ark. Code Ann. §§ 9-2-101, 9-2-102. The Arkansas statute setting out the formal procedures for name change did not repeal the common-law power to change a person’s name. See Clinton, 247 S.W.2d at 1018. Thus, a person may obtain a court order changing his or her name for any good reason, or under common law without undertaking a legal proceeding, a person can change his or her name for any reason (that is not fraudulent). Marriage would satisfy both common-law and the name change statute as an appropriate reason for a name change. See Gangi v. Edmonds, 218 S.W.3d 339, 346 (Ark. Ct. App. 2005) (noting that it was “customary” in Arkansas for a woman to assume her husband’s surname following marriage).

In order to change a person’s name on an Arkansas driver’s license, Arkansas law requires the original or a certified copy of a recorded marriage license, a court order, a divorce decree, or any other document, including a document issued by the Department of Homeland Security, that is deemed to be satisfactory by the Arkansas Office of Driver Services as evidence that the name change is in accordance with state and federal laws. See Ark. Code Ann. § 27-16-506(b). A marriage license supports name changes for various other Arkansas licensing purposes as well. See e.g., Ark. Admin. Code §§ 067.00.2-XI (changing name on RN, LPN, LPTN licenses), 067.00.3-IV (changing name on registered nurse practitioner license), 067.00.4.V (changing name on advanced practice registered nurse license). Thus, under Arkansas law, marriage constitutes an acceptable basis to change a person’s name and a marriage license is acceptable evidence to support a name change request.

As stated, for same-sex couples married in Arkansas between May 9 to May 16, 2014, and on June 26, 2015, or later, no legal distinction exists between same-sex married couples and opposite-sex married couples with respect to marriage under Arkansas’s laws. Thus, same-sex married couples in Arkansas, like opposite-sex married couples, may change their names based upon their marriage, and a marriage license provides evidence of a valid marriage to support a name change.5

2) The date Arkansas will begin issuing marriage licenses and certificates to same-sex couples

As explained in detail above, pursuant to the Supreme Court’s Obergefell decision and the Eighth Circuit’s Jernigan decision, beginning June 26, 2015, same-sex marriage became legal in Arkansas. Further, as also detailed above, pursuant to the Arkansas Circuit Courts’ final rulings in Wright and Frazier-Henson, the same-sex marriages that took place in Arkansas during the period of May 9 to May 16, 2014, are legal and valid under Arkansas law. POMS RM 10212.035(A)(4), which presently instructs SSA to accept marriage documents issued to same-sex couples for marriages that took place on May 9, 2014 to May 16, 2014, and on June 26, 2015, or later in Arkansas as evidence of a name change, accurately reflects the change in Arkansas law and requires no further revisions.

3) Any change to the status of a prior or new civil union or domestic partnership entered into in Arkansas

This question is not applicable to Arkansas because Arkansas does not currently have a state law authorizing or recognizing a civil union or domestic partnership for same-sex couples.6

4) Whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage

This question is not applicable to Arkansas because Arkansas does not currently have a state law authorizing or recognizing a civil union or domestic partnership for same-sex couples.

CONCLUSION

On July 2, 2015, and August 14, 2015, following the Supreme Court’s decision in Obergefell, SSA updated POMS RM 10212.035(A)(4) to instruct that SSA should accept marriage documents issued to same-sex couples for marriages that took place on May 9, 2014 to May 16, 2014, and on June 26, 2015, or later in Arkansas as evidence of a name change. POMS RM 10212.035(A)(4) should be updated to reference this precedent opinion, but no other changes are necessary.

Michael McGaughran

Regional Chief Counsel

By: Shalyn Timmons

Assistant Regional Counsel


Footnotes:

[1]

. For SSA to process an individual’s request to change his or her name on the SSN (SSN card and Numident record), the individual must present evidence of the name change event, new name, and the number holder’s identity as shown on the latest Numident record. See POMS RM 10212.015(A). The focus of this opinion is only upon the name change event requirement of same-sex marriage. See POMS RM 10212.035.

[2]

. Because the court issued his ruling in Wright late in the day on May 9, 2014, after county clerks offices had closed, Arkansas county clerks did not begin issuing marriage licenses to same-sex couples until the following day on May 10, 2014. See http://www.arktimes.com/ArkansasBlog/archives/2014/05/09/judge-chris-piazza-invalidates-arkansass-same-sex-marriage-ban (last visited May 4, 2016); http://www.arktimes.com/ArkansasBlog/archives/2014/05/10/marriage-licenses-issued-to-first-same-sex-couples-in-arkansas (last visited May 4, 2016).

[3]

. The appeal period expired and the order became final in Frazier-Henson on July 9, 2015. See Ark. R. App. P. (Civil) 2(a), 4(a).

[4]

. In May 2014, SSA Arkansas field offices began receiving Form SS-5 requests from individuals asking to change their last names on Social Security number (SSN) cards and records based on the recently issued Arkansas same-sex marriage licenses and certificates, and the Dallas Regional Office submitted a legal opinion request asking whether SSA should accept these Arkansas same-sex marriage documents as legal name change documents per POMS RM 10212.035. The legal opinion request included name change requests from 18 individuals who provided marriage documents consisting of recorded marriages licenses (including completed marriage certificates) that county clerks in Saline, Pulaski, Carroll, and Washington Counties issued on May 12, 13, and 14, 2014, and that showed that these 18 individuals participated in solemnized marriage ceremonies in Arkansas on the day that they received their marriage licenses.

[5]

. SSA’s POMS instructs that SSA considers marriage certificates, souvenir certificates, and certified copies of marriage records to be marriage documents and acceptable evidence of a name change. See POMS RM 10212.025. SSA accepts original records or documents, properly certified extract records, and properly certified copies of the original record as evidence for an SSN. See POMS RM 10210.085(A). With regard to the type of marriage documents Arkansas issues, Arkansas law sets forth specific procedures and requirements for obtaining a marriage license, participating in a solemnized marriage ceremony, completing a marriage certificate on the license, and filing and recording the completed marriage license. See Ark. Code Ann. §§ 9-11-201 – 9-11-221. The completed marriage license, including certified copies, constitutes evidence of a valid marriage in Arkansas. See Fryar v. Roberts, 57 S.W.3d 727, 733 (Ark. 2001); Ark. Code Ann. §§ 9-11-202, 9-11-220(f), 9-11-221; see also DePotty v. DePotty, 295 S.W.2d 330 (Ark. 1956) (the marriage license statutes are directory not mandatory, and the lack of an Arkansas license did not otherwise destroy the validity of a marriage between a couple who, without an Arkansas license, had a ceremonial marriage performed by a qualified minister).

[6]

. In May 2007, the City of Eureka Springs, Arkansas enacted Ordinance No. 2052, an Ordinance Creating a Domestic Partnership Registry. However, Eureka Springs’s Ordinance No. 2052 expressly recognized its “[l]imited [e]ffect” noting that the ordinance did not alter, affect, or contravene local, county, state, or federal law; the ordinance should not be construed as recognizing or treating a registered domestic partnership as a marriage; and the ordinance did not convey to registered domestic partners any new or different right, benefit, obligation, or entitlement, individually or jointly. Thus, the Eureka Springs city ordinance merely recognized a city-wide domestic partnership registry, and did not grant or purport to grant the partners to such a domestic partnership any rights under state law.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1502712005
PR 02712.005 - Arkansas - 07/05/2016
Batch run: 07/05/2016
Rev:07/05/2016