ISSUE PRESENTED
This memorandum is in response to your request for a legal opinion as to whether the
following August 2013 “altered” New Mexico same-sex marriage documents four individuals
presented to the Social Security Administration (SSA or agency) in support of their
name change applications (Forms SS-5) are acceptable evidence for a legal name change
on the Social Security number (SSN) card and record:
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Jayson is seeking to change his last name to C~ and in support presented copies of
a marriage application and marriage license showing that the Dona Ana County, New
Mexico clerk issued the license on August 30, 2013, authorizing the marriage between
Jayson and Devin, and a copy of a recorded marriage certificate showing that Jayson
married Devin on August 30, 2013;
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Bonnie is seeking to change her last name to S~ and in support presented copies of
a marriage application and marriage license showing that the Bernalillo County, New
Mexico clerk issued the license on August 28, 2013, authorizing the marriage between
Bonnie and Jennifer, and a copy of a recorded marriage certificate showing that Bonnie
married Jennifer on August 28, 2013;
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Savannah is seeking to change her last name to R~-H~ and in support presented a copy
of a marriage license showing that the Dona Ana County, New Mexico clerk issued the
license on August 21, 2013, authorizing the marriage between Savannah and Pamala;
and
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Pamala is seeking to change her last name to R~-H~ and in support presented a copy
of a marriage license showing that the Dona Ana County, New Mexico clerk issued the
license on August 21, 2013, authorizing the marriage between Savannah and Pamala.
You did not elaborate on what you believe to be “altered” with regard to these documents;
however, we believe that you are referring to the fact that the marriage license applications
and certificates for Jayson and Bonnie use gender-neutral language of “applicant”
and “spouse,” instead of “male applicant,” “female applicant,” “bride,” and “groom”
as the marriage application and certificate forms set out in N.M. Stat. Ann. § 40-1-18
currently provide. There does not appear to be any “altered” language in the marriage
license for Savannah and Pamala.
ANSWER
On December 19, 2013, the New Mexico Supreme Court issued an opinion in Rose Griego, et al. v. Maggie Toulouse Oliver, et al., and State of New Mexico, ex
rel., New Mexico Association of Counties, et al. v. Honorable Alan Malott, 316 P.3d 865 (N.M. Dec. 19, 2013) (G~) holding that same-sex marriage is legal in
New Mexico. Following G~, the agency updated Program Operations Manual System (POMS) Records Maintenance (RM)
10212.035(A) to include New Mexico as a state that allows for a legal name change
based upon evidence of a valid New Mexico same-sex marriage. See POMS RM 10212.025(A)(16) (“Accept marriage documents issued to same-sex couples for marriages that
took place on August 21, 2013 or later by jurisdictions (town, county or State) in
the State of New Mexico as evidence of a name change.”). Therefore, SSA should accept
Jayson’s same-sex marriage certificate as acceptable evidence of a legal name change
event to change his last name to that of his spouse’s last name, C~, and Bonnie’s
same-sex marriage certificate as acceptable evidence to change her last name to that
of her spouse’s last name, S~. We note that a mere photocopy of the marriage certificate
will not suffice. Rather, the agency must have an original or certified copy of the
marriage certificate to process the legal name change request. See POMS RM 10210.085(A) (acceptable forms of evidence for an SSN). However, Savannah and Pamala provided
only a marriage license, and the license alone is insufficient documentary evidence
to show a legal name change event necessary to process their legal name change requests.
We advise SSA to request a copy of their marriage certificate documenting that the
required solemnized marriage ceremony took place in order to process their name change
requests.
BACKGROUND
Recent Developments in New Mexico’s Law Regarding Same-Sex Marriage
New Mexico’s state marriage laws are unique among states in this country because there
is no express New Mexico constitutional provision or statutory law allowing or prohibiting
same-sex marriage. Beginning in August 2013, some New Mexico country clerks began
issuing marriage licenses to same-sex couples at the direction of several state district
courts’ orders, and some county clerks began issuing same-sex marriage licenses voluntarily
without a court order. See G~, 316 P.3d at 872-873. These actions led to a request to the New Mexico Supreme Court
for a writ of superintending control to clarify whether same-sex marriage was legal
in New Mexico. The New Mexico Constitution provides that the New Mexico Supreme Court
has the authority to issue writs of superintending control over all inferior courts.
N.M. Const. art. 6, § 3. The New Mexico Supreme Court may exercise its power of superintending
control “to control the course of ordinary litigation in inferior courts . . . even
when there is a remedy by appeal, where it is deemed to be in the public interest
to settle the question involved at the earliest moment.” G~, 316 P.3d at 873, quoting State ex rel. Schwartz v. Kennedy, 904 P.2d 1044, 1049 (N.M. 1995).
See id. At the time the petition for writ of superintending control was filed with the New
Mexico Supreme Court on September 5, 2013, eight New Mexico counties were issuing
marriage licenses to same-sex couples and twenty-four counties were not. See id. at 873. By the time the New Mexico Supreme Court held oral argument on October 23,
2013, New Mexico county clerks in a number of counties had already issued more than
1,466 marriage licenses to same-sex couples, including the four name change applicants
at issue in this legal opinion request. See id.
On December 19, 2013, the New Mexico Supreme Court issued the G~ decision holding that same-sex marriage is legal in New Mexico. The New Mexico Supreme
Court held that denying same-sex couples the right to marry, and thus depriving them
and their families of the rights, protections, and responsibilities of civil marriage,
violated the Equal Protection Clause of the New Mexico Constitution. G~, 316 P.3d at 871-872, 888-889. Further, the New Mexico Supreme Court held that, when
read as a whole, the existing New Mexico marriage statutes had the effect of precluding
same-sex couples from marrying and benefiting from rights, protections, and responsibilities
flowing from a civil marriage. Id. Therefore, the New Mexico Supreme Court held that the existing New Mexico marriage
laws were unconstitutional. See id. However, the New Mexico Supreme Court neither specified a particular date on which
same-sex couples could begin receiving marriage licenses, nor struck down the existing
marriage statutes. See G~, 316 P.3d at 889 (“Having declared the New Mexico marriage laws unconstitutional,
we now determine the appropriate remedy. We decline to strike down our marriage laws
because doing so would be wholly inconsistent with the historical legislative commitment
to fostering stable families through this marriage laws.”). Instead, in terms of a
remedy, the Court ordered that whenever reference is made in New Mexico statutes,
rules, regulations, or the common law to “marriage, husband, wife, spouse, family,
immediate family, dependent, next of kin, widow, widower, or any other word, which,
in context denotes a marital relationship, the same shall apply to same-sex couples
who choose to marry.” Id. The Court ordered that “civil marriage” is to be construed to mean “the voluntary
union of two persons to the exclusion of all others,” and that “all rights, protections,
and responsibilities that result from the marital relationship shall apply equally
to both same-gender and opposite-gender married couples.” Id. The Court also ruled that with regard to the forms section 40-1-18 requires for the
marriage application, marriage license, and marriage certificate, the county clerks
shall use “gender-neutral language.” Id.; see N.M. Stat. Ann. § 40-1-18. The Court affirmed the district courts that had, in August
and September 2013, ordered county clerks to issue marriage licenses to same-sex couples,
The New Mexico Supreme Court was not specific with regard to which district court
decisions it was affirming; however, it appears that the Court is referring to Judge
Alan’s September 3, 2013, district court decision that led to the intervenors’ request
that the New Mexico Supreme Court issue a writ of superintending control (Judge Alan’s
declaratory judgment, writ of mandamus, and injunction requiring county clerks in
two counties to issue same-sex marriage licenses), as well as to other district courts’
decisions that issued writs and orders requiring county clerks in other counties to
issue same-sex marriage licenses that the Court mentions in its decision. See G~, 316 F.3d at 872-873 (identifying these lower district court cases as Griego v. Oliver, No. D-202-CV-2013-02757, 2nd Judicial Dist. Ct. Sept. 3, 2013; State ex rel. Stark v. Martinez, No. D-820-cv-2013-295, 8th Judicial Dist. Ct. Aug, 27, 2013; State ex rel. Newton v. Stover, No. D-132-cv-2013-00094, 1st Judicial Dist, Ct., Aug. 29, 2013; Katz v. Zamarripa, No. D-608-cv-2013-00235, 6th Judicial Dist. Ct. Sept. 5, 2013).
granted a writ of superintending control, and ordered lower courts in the state “to
mandate compliance with the holdings and rationale of this opinion” to recognize the
legality of same-sex marriage in New Mexico. G~, 316 P.3d at 873, 889.
Although the G~ decision did not specify a particular effective date for recognition of same-sex
marriages in New Mexico, the remedy the New Mexico Supreme Court provided and the
circumstances underlying the writ of superintending control support the position that
the Court intended to recognize as valid same-sex marriage licenses issued, and same-sex
marriages performed pursuant to such licenses as reflected in marriage certificates,
beginning August 21, 2013, the date a New Mexico county clerk first issued a same-sex
marriage license in the events that ultimately led to the New Mexico Supreme Court’s
decision in G~. The Dona Ana County clerk voluntarily (without a court order requiring him to do
so) issued the first marriage licenses to same-sex couples on August 21, 2013. See G~, 316 P.3d at 872; see also http://www.donaanacounty.org/content/ellins-do%C3%B1-ana-county-issuing-same-gender-marriage-licenses (last visited February 26, 2014).
DISCUSSION
SSA Law and Policy Regarding Legal Name Changes Based on Ceremonial Marriage
For SSA enumeration purposes, a legal name consists of a first name and a last name
(or surname). See 20 C.F.R. § 422.110(a); POMS RM 10212.001(A). SSA policy and procedures provide that in general, a U.S. born person’s legal
name is the name shown on his or her U.S. birth certificate unless the person’s name
has changed based on certain events, such as a marriage or a valid court order for
a name change. See POMS RM
10212.001(B)(1), RM 10212.010. The Intelligence Reform and Terrorism Prevention Act of 2004 requires SSA to “establish
minimum standards for verification of documents or records submitted by an individual
to establish eligibility for an original or replacement social security card . . .
.” Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458,
§ 7213(a)(1)(B); see also POMS RM 10210.001 (changes in SSN card evidence requirements), RM
10210.405(B) (proof of identity for an SSN card). An applicant for a name change must submit
documentary evidence that the agency regards as convincing evidence of the applicant’s
identity. See 20 C.F.R. §§ 422.107(a), (c), 422.110(a); see also POMS RM 10210.015(A), RM 10212.001, RM 10212.015. After the applicant submits evidence that the agency regards as convincing evidence
of identity and legal name change, the agency may issue a replacement card bearing
the same number and the applicant’s new name. See 20 C.F.R. § 422.110(a).
Thus, to process a name change on the SSN card, the applicant must submit evidence
of:
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the name change event that complies with agency’s evidence requirements;
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the applicant’s identity as shown on the latest numident record.
See POMS RM 10212.015(A), RM 10212.055. The focus of this legal opinion request concerns the requirement for evidence of
a legal name change event. The Dallas Regional Office legal opinion request does not
appear to seek our opinion as to whether the evidence presented is also sufficient
to show the four applicants’ new names and to verify their identity. However, for
completeness, we note that with regard to evidence of the new name to be shown on
the SSN card, for a marriage, the agency is to accept a name change document based
on marriage as evidence of the new name to be shown on the card, if the new name can
be derived from the document. See POMS RM 10212.015(C), RM 10212.055(B). Any of the following changes to the last name, using the names shown on the evidence,
are permitted: bride takes the groom’s last name; groom takes the bride’s last name;
spouse takes the other parties’ last name; spouse takes one part of the other parties’
compound surname; or compound name (with or without hyphen) of each spouse’s original
surname for either or both parties. See POMS RM 10212.055(B). The four applicants are seeking new last names consistent with this policy that
allows new last names based on marriage. In addition, their new names can be derived
from their marriage documents.
Concerning evidence of identity, we note that a marriage document can be used as acceptable
evidence of identity if the marriage took place in the prior two years, and the marriage
document shows the applicant’s prior name and either his or her age, birth date, or
parents’ names, and if this information matches the data on the applicant’s numident
record. See 20 C.F.R. § 422.107(c) (documentary evidence of identity may consist of a driver’s
license, identity card, school record, medical record, marriage record, passport,
Department of Homeland Security document, or other similar document serving to identify
the individual; the document must contain sufficient information to identify the applicant,
including his or her name and (1) age, date of birth, or parents’ names; and or (2)
a photograph or physical description of the individual); POMS RM 10212.015(D), RM 10212.020, RM 10212.055(D). The four applicants have provided sufficient evidence of identity.
Jayson’s marriage occurred within the past two years and his marriage documents contain
this information (showing his prior name, date of birth, and place of birth), but
we note that his date of birth shown on his marriage documents (03/30/89) does not
match the date of birth shown on his numident record (03/30/86). However, he also
submitted a driver’s license with his prior name and a date of birth (03/30/86) that
matches his numident record sufficient to show his identity. Bonnie’s marriage occurred
within the past two years and her marriage documents contain the requisite information
(showing her prior name, date of birth, and place of birth) that matches her numident
record, and she has also provided her driver’s license (also showing her prior name
and date of birth). Savannah and Pamala have presented only a marriage license, and
this document alone is insufficient to show their identity because it does not also
show their age, date of birth, or parents’ names. However, they have also submitted
driver’s licenses showing their prior names and dates of birth to show their identity.
Thus, it appears that based on the evidence provided to us with this legal opinion
request, the four applicants have submitted sufficient evidence to support their new
last names and to establish their identity.
As noted, SSA permits legal name changes based upon sufficient evidence of a marriage.
See POMS RM 10212.010 (U.S. ceremonial marriage, U.S. common law marriage, and U.S. recognized same-sex
marriage are acceptable bases for a name change), RM 10212.015(B) (to process a name change on the SSN, the agency must obtain acceptable evidence
of a name change event), RM 10212.025 (evidence of a name change based on U.S. ceremonial marriage), RM 10212.035 (evidence of a name change based on U.S. recognized same-sex marriage). SSA policy
defines “marriage records” as the original marriage record kept by the official custodian,
and “marriage documents” as the means by which a marriage record is documented. See POMS RM 10212.025. Marriage certificates, souvenir certificates, and certified copies of marriage records
are considered marriage documents and acceptable evidence of a name change. See id. 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) (acceptable forms of evidence for an SSN).
With regard to U.S. recognized same-sex marriage, SSA policy and procedures require
the agency to “[a]ccept same-sex marriage documents validly issued by a U.S. state,
which permits ceremonial same-sex marriage as evidence of a name change.” POMS RM 10212.035. Further, SSA policy explains that “[f]or SSA purposes, an applicant’s state of residence
is not a factor in determining whether the same-sex marriage document is acceptable
evidence for a name change.” Id. Thus, the key issue for purposes of this legal opinion request concerns whether the
four individual applicants’ same-sex marriage documents presented for purposes of
a legal name change have been “validly issued” by New Mexico. POMS RM 10212.035(A) lists the states that recognize same-sex marriage and permit name changes based
upon a valid same-sex marriage. Following the New Mexico Supreme Court’s decision
in G~ on December 19, 2013, the agency updated POMS RM 10212.035(A) to include New Mexico. See POMS RM 10212.035(A)(16). We address New Mexico law with regard to marriage and name changes below.
New Mexico Same-Sex Marriage Certificates Are Acceptable Evidence to Support a Legal
Name Change
With regard to name changes in New Mexico, we note generally that under New Mexico
common law, a person may lawfully assume any name that he or she wants so long as
no fraud or misrepresentation is involved. See Petition of Variable for Change of Name v. Nash, 190 P.3d 354, 356 (N.M. App. 2008); In re M~, 106 P.3d 584 (N.M. App. 2004). In
addition, though not required to do so, any New Mexico resident may, upon petition
to the state district court of the district in which the petitioner resides and upon
filing of a required notice with proof of publication, have his or her name changed
by a court order provided no sufficient cause is shown to the contrary. N.M. Stat.
Ann. §§ 40-8-1, 40-8-2; see also N.M. Stat. Ann. § 24-14-25 (amending name on birth certificate upon a court order);
N.M. Admin. Code § 7.2.2.17(C), (D) (amending name on birth and death certificates
upon a court order).
As to whether marriage documents support a request for a name change, we first consider
the types of marriage documents that are produced with a New Mexico marriage and the
documents submitted with the four applications at hand in this legal opinion request.
Jayson and Bonnie provided copies of their marriage applications, marriage licenses,
and marriage certificates, showing that they participated in solemnized marriage ceremonies.
Savannah and Pamala provided only copies of their marriage licenses.
New Mexico does not recognize common law marriage. See Rivera v. Rivera, 243 P.3d 1148, 1151 (N.M. App. 2010). For a marriage to be valid under New Mexico
law it must be formally entered into by contract and an appropriate official must
solemnize the marriage. See id. at 1150-1153 (examining whether a New Mexico marriage was valid given that the parties’
obtained a Texas, not New Mexico, marriage license, refusing to find the marriage
void based only upon the lack of a New Mexico license, but also noting that New Mexico
law continues to clearly require marriage licenses as evidence that the marriage fully
complies with the law); see also N.M. Stat. Ann. § 40-1-1 (marriage is a civil contract), 40-1-2 (the civil contract
of marriage is entered into when an authorized person solemnizes the marriage). “Solemnize”
means to join in marriage before witnesses by means of a ceremony. N.M. Stat. Ann.
§ 40-1-2.
Each couple wanting to marry must first complete a marriage application in order to
obtain a marriage license from a New Mexico county clerk, and then once the county
clerk has issued the license, the couple must present the marriage license and participate
in a marriage ceremony before a person authorized to solemnize the marriage. See N.M. Stat. Ann. § 40-1-2 (an authorized person must solemnize a marriage), § 40-1-10
(couples wishing to marry “shall first obtain a license from a county clerk of this
state and following a ceremony conducted in this state file the license for recording
in the county issuing the license.”), § 40-1-14 (“persons authorized to solemnize
marriage shall require the parties contemplating marriage to produce a license signed
and sealed by the county clerk issuing the license.”). Finally, the person performing
the required marriage ceremony must complete the marriage certificate for filing with
the county clerk as part of the county records. See N.M. Stat. Ann. § 40-1-15 (the authorized person solemnizing the ceremony has “the
duty . . . to certify the marriage to the county clerk within ninety days from the
date of the marriage ceremony,” and the county clerk shall file the marriage certificate
and record it as a permanent record in the county records), § 40-1-19(B) (“a person
who performs the marriage ceremony or certifies a marriage to the county clerk, who
neglects or fails to comply with the provisions of Chapter 40, Article 1 NMSA 1978
and any person who willfully violates the law by deceiving or attempting to deceive
or mislead any officer or person in order to obtain a marriage license or to be married
contrary to law is upon conviction guilty of a misdemeanor”). Thus, the marriage license
authorizes the parties to marry, and the marriage certificate is the document establishing
that the required solemnized marriage ceremony before an authorized person occurred.
The New Mexico marriage statutes provide a uniform form of application, marriage license,
and marriage certificate for county clerks to use. See N.M. Stat. Ann. §§ 40-1-17, 40-1-18.
The New Mexico marriage statutes do not expressly address name changes that may occur
pursuant to a marriage. See N.M. Stat. Ann. §§ 40-1-1 – 40-1-20, 40-2-1 – 40-2-9. For example, New Mexico does
not have a specific statute providing that a marriage certificate, in and of itself,
effectuates a legal name change. However, New Mexico statutory law and administrative
regulations provide that a marriage certificate is sufficient proof of identity to
change an individual’s legal name on his or her driver’s license. See e.g., N.M. Stat. Ann. § 66-5-22 (“when the name of a [driver’s] licensee is changed by
marriage or otherwise, the person shall, within ten days, notify the [motor vehicle]
division . . . . In the event of a change of name, the license must be delivered by
the licensee to the division and the change of name be accomplished on the license
itself. The division may require such evidence as it deems satisfactory regarding
the change of name.”); N.M. Admin. Code § 18.19.5.12(E)(11) (applicants for a New
Mexico identification card, driving permit, or driver’s license must provide documentary
proof of their identity, and a marriage certificate a state or U.S. territory issued
is acceptable proof of identity); see also New Mexico Motor Vehicle Division’s website at http://www.mvd.newmexico.gov/proof-of-identity.aspx (an original or certified copy of marriage certificate a state or U.S. territory
issued is an acceptable document of identity) (last visited Feb. 26, 2014); http://www.mvd.newmexico.gov/apply-for-new-driver-s-license.aspx (to apply for a driver’s license, you must present proof of identity, such as a marriage
certificate) (last visited Feb. 26, 2014); http://www.mvd.newmexico.gov/resources-frequently-asked-questions.aspx?1f7fcb5548ee4e17a47ff4e27e571a01blogPostId=e2f7bf9262214ff6858912b34b00ff1d#/BlogContent<http://www.mvd.newmexico.gov/resources-frequently-asked-questions.aspx?1f7fcb5548ee4e17a47ff4e27e571a01blogPostId=e2f7bf9262214ff6858912b34b00ff1d> (to change name on driver’s license, an applicant must present an original or certified
copy of a marriage license, court order, divorce decree, or birth certificate) (last
visited Feb. 26, 2014); Los Alamos County, New Mexico website at http://www.losalamosnm.us/clerk/Pages/MarriageLicenseFAQs.aspx (under marriage license frequently asked questions and “How do I change my last name?”,
the county website explains that after the marriage ceremony is performed and certificate
recorded, a certified copy of the marriage certificate will be issued and can be taken
to any State Motor Vehicle Department for a driver’s license with the new last name
and to the Social Security office for a new last name) (last visited Feb. 26, 2014).
In addition, New Mexico administrative regulations specify that a marriage certificate
is sufficient proof to change an individual’s legal name on his or her medical license,
and other professional and occupational licenses. See e.g., N.M. Admin. Code § 16.10.1.8 (marriage certificate is sufficient proof to change
name on medical board record or license); N.M. Admin. Code § 16.7.1.8(C)(1) (marriage
certificate is sufficient proof to change name on massage therapist license); N.M.
Admin. Code § 16.12.2.10(S) (marriage certificate sufficient proof to change name
on nurse license); N.M. Admin. Code § 16.13.15.9 (marriage certificate sufficient
proof for a name change to a nursing home administrator license). Therefore, New Mexico
will accept a marriage certificate for purposes of a legal name change.
As explained in detail above, as of the New Mexico Supreme Court’s G~ decision, same-sex married couples may change their names based upon their marriage
to the same extent as opposite-sex married couples. Thus, the State will accept a
same-sex marriage certificate for purposes of a legal name change. Following the G~ decision, the agency updated POMS RM 10212.035(A)(16) to provide that the agency should accept marriage documents issued by New
Mexico county clerks to same-sex couples for marriages that took place on August 21,
2013, or later in New Mexico.
Jayson’s New Mexico Marriage Certificate is Sufficient Evidence to Support a Legal
Name Change
Jayson is seeking to change his last name to C~ and presented copies of a marriage
application and marriage license showing that the Dona Ana County, New Mexico clerk
issued the license on August 30, 2013, authorizing the marriage between Jayson and
Devin, and a copy of a recorded marriage certificate showing that an appropriate official
solemnized the marriage between Jayson and Devin on August 30, 2013. Jayson’s New
Mexico marriage certificate is sufficient documentary evidence of a U.S. recognized
same-sex marriage to allow SSA to change his legal name on his SSN card and record.
Bonnie’s New Mexico Marriage Certificate is Sufficient Evidence to Support a Legal
Name Change
Bonnie is seeking to change her last name to S~ and presented copies of a marriage
application and marriage license showing that the Bernalillo County, New Mexico clerk
issued the license on August 28, 2013, authorizing the marriage between Bonnie and
Jennifer, and a copy of a recorded marriage certificate showing that an appropriate
official solemnized the marriage between Bonnie and Jennifer on August 28, 2013. Bonnie’s
New Mexico marriage certificate is sufficient documentary evidence of a U.S. recognized
same-sex marriage to allow SSA to change her legal name on her SSN card and record.
Savannah’s New Mexico Marriage License is Insufficient Evidence to Support a Legal
Name Change
Savannah is seeking to change her last name to R~-H~ and presented a copy of a marriage
license showing that the Dona Ana County, New Mexico clerk issued the license on August
21, 2013, authorizing the marriage between Savannah and Pamala. The New Mexico marriage
license, in and of itself, that Savannah presented to SSA, does not show that the
legal name change event (marriage) occurred and does not comport with New Mexico’s
or SSA’s legal name change requirements. Therefore, the marriage license is insufficient
documentary evidence of a U.S. recognized same-sex marriage to allow SSA to change
her legal name on her SSN card and record.
Pamala’s New Mexico Marriage License is Insufficient Evidence to Support a Legal Name
Change
Pamala is seeking to change her last name to R~-H~ and presented a copy of a marriage
license showing that the Dona Ana County, New Mexico clerk issued the license on August
21, 2013, authorizing the marriage between Savannah and Pamala. The mere New Mexico
marriage license alone, that Pamala presented to SSA, does not show that the legal
name change event (marriage) occurred and does not comport with New Mexico’s or SSA’s
legal name change requirements. Therefore, the marriage license is insufficient documentary
evidence of a U.S. recognized same-sex marriage to allow SSA to change her legal name
on her SSN card and record.
The “Altered” New Mexico Marriage Documents Are Valid
You have asked whether the “altered” nature of the August 2013 same-sex marriage documents
the four applicants submitted impacts the validity. As noted, you did not elaborate
on what you believe to be “altered” with regard to these documents. The marriage license
applications and marriage certificates for Jayson and Bonnie use gender-neutral language
of “applicant” and “spouse.” Whereas, the marriage application and marriage certificate
forms set out in N.M. Stat. Ann. § 40-1-18 use gender-specific terms of “male applicant,”
“female applicant,” “bride,” and “groom.” The gender-neutral language of their marriage
applications and certificates does not impact their validity. In fact, in G~, the
New Mexico Supreme Court expressly ruled that with regard to the forms section 40-1-18
requires for the marriage application, marriage license, and marriage certificate,
the county clerks shall use “gender-neutral language.” See G~, 316 P.3d at 889; N.M. Stat. Ann. § 40-1-18. Therefore, Pamela’s and Bonnie’s marriage
license applications and certificates that utilize gender-neutral language comply
with this mandate in G~.
Furthermore, even before the G~ decision mandating gender-neutral language, New Mexico law required only that county
clerks use forms “substantially” similar to the uniform forms provided for in section
40-1-18. See N.M. Stat. Ann. § 40-1-17 (“To ensure a uniform system of records of all marriages
contracted and the better preservation for future reference, the form of application,
license, and certificate shall be substantially as provided in section 40-1-18.”).
Jayson’s and Bonnie’s applications and certificates merely changed the terms “male
applicant” and “female applicant” to “applicant,” and changed the terms “bride” and
“groom” to “spouse,” and therefore, these forms remain substantially similar to those
provided in N.M. Stat. Ann. § 40-1-18. Thus, the gender-neutral language of Jayson’s
and Bonnie’s marriage documents does not impact their validity. Finally, we note that
Savannah’s and Pamala’s marriage license does not appear to be altered and uses language
identical to the marriage license form that N.M. Stat. Ann. § 40-1-18 provides.
CONCLUSION
Following the G~ decision, the agency updated POMS RM 10212.035(A)(16) to provide that the agency should accept marriage documents issued by New
Mexico county clerks to same-sex couples for marriages that took place on August 21,
2013, or later in New Mexico. Therefore, SSA may accept Jayson’s New Mexico marriage
certificate as evidence to support a legal name change. In addition, SSA may accept
Bonnie’s New Mexico marriage certificate as evidence to support a legal name change.
However, Savannah and Pamala’s marriage license alone is insufficient evidence of
the legal name change event. Under New Mexico law, the license authorizes the marriage
and the certificate is proof that the required solemnized marriage ceremony took place
in compliance with the law. In this denial, SSA should explain that the denial of
their application is not because of the same-sex marriage but because of the deficient
documentation to show that the required solemnized marriage ceremony occurred.
Michael McGaughran,
Regional Chief Counsel
By: ____________
Shalyn Timmons
Assistant Regional Counsel