Date: November 16, 2016
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 Texas 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) on 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 Texas 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. Specifically,
SSA instructed staff to“[a]ccept 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 Texas as evidence of a name change.”
BACKGROUND ON LEGALIZATION OF SAME-SEX MARRIAGE IN TEXAS
Historically, Texas law prohibited same-sex marriages within Texas and prohibited
recognition of out-of-state same-sex marriages. See Tex. Const. art. I, § 32(a), (b); Tex. Fam. Code Ann. §§ 2.001(b), 2.401(a), 6.204(b),
(c); see also Walker v. State Farm Lloyd’s, 2004 WL 1462200, at *2 fn1 (N.D. Tex. 2004) (marriage, formal and common-law, is
not legal between same-sex couples in Texas); Murphy v. State, 653 S.W.2d 567, 569 (Tex. App. – San Antonio 1983, writ ref’d) (“in Texas two males
cannot obtain a marriage license or enter into a common law marriage”). In 2013, plaintiffs
filed lawsuits in federal district courts in Texas challenging Texas’s same-sex marriage
laws, and on February 26, 2014, the U.S. District Court for the Western District of
Texas issued a decision in one case holding Texas’s laws prohibiting same-sex marriage
to be unconstitutional and enjoining enforcement of the laws. See De Leon v. Perry, No. 5:13-cv-00982-OLG (W.D. Tex. 2013); see also McNosky v. Perry, No. 1:13-cv-00631-SS (W.D. Tex. 2013); Zahrn v. Perry, No. 1:13-cv-00955-SS (W.D. Tex. 2013). The District Court issued an immediate stay
of execution of the injunction while the case was on appeal to the Court of Appeals
for the Fifth Circuit, and thus no same-sex marriages took place at this time. See De Leon v. Perry, No. 14-50196 (5th Cir.).
While the De Leon appeal was pending before the Fifth Circuit, on June 26, 2015, the 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 Texas. 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. Thus, per the Supreme Court’s ruling in Obergefell, on July 1, 2015, the Fifth Circuit issued a decision in De Leon affirming the District Court’s decision. See De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015). The Fifth Circuit recognized that “Obergefell, in both its Fourteenth and First Amendment iterations, is the law of the land and,
consequently, the law of this circuit.” Id. at 625. Thus, the Fifth Circuit applied Obergefell to hold that Texas’s same-sex marriage laws were unconstitutional.
Accordingly, based on the Supreme Court’s ruling in Obergefell and the Fifth Circuit’s ruling in De Leon, beginning June 26, 2015, same-sex marriage is legal in Texas and Texas must recognize
valid out-of-state same-sex marriages.
JULY 2, 2015 UPDATE TO POMS RM 10212.035
As stated earlier in this opinion, on July 2, 2015, in light of the Supreme Court’s
decision in Obergefell on June 26, 2015, SSA updated POMS RM 10212.035(A) to include Texas among the states that permit ceremonial same-sex marriage and
to instruct SSA to accept same-sex marriage documents from Texas as evidence of a
name change beginning with the date of the Obergefell decision.
QUESTIONS PRESENTED
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 Texas permits parties to a same-sex marriage to change their names based
on the marriage
Yes. As we addressed in detail in the background section above, pursuant to the Supreme
Court’s June 26, 2015, Obergefell decision and the Fifth Circuit’s De Leon decision, same-sex marriage is legal in all states, including Texas. As a result,
beginning June 26, 2015, no legal distinction exists between same-sex married couples
and opposite-sex married couples with respect to marriage under Texas’s laws. Thus,
beginning June 26, 2015, same-sex married couples in Texas may change their names
based upon their marriage to the same extent as opposite-sex married couples.
Texas law allows for name changes based upon marriage. Under common law, an adult
individual can change his or her name without resort to legal proceedings, as long
as the name change is not for a fraudulent purpose. See Appeal of Evetts, 392 S.W.2d 781, 783 (Tex. Civ. App. – San Antonio 1965, writ ref’d). Sections 45.101
– 45.106 of the Texas Family Code sets forth the statutory procedure for obtaining
a name change, which does not abrogate the common law right to a name change, but
instead provides a method for documenting the change. See id. An adult seeking to change his or her name files a petition in court for a name
change setting for the reason for the name change request, and like common law, an
adult individual can change his or her name for any reason that is not fraudulent,
wrongful, or capricious. See Tex. Fam. Code Ann. §§ 45.101, 45.102, 45.103(a); In re Erickson, 547 S.W.2d 357, 359 (Tex. App. – Houston [14th Dist.] 1977, no writ); Appeal of Evetts, 392 S.W.2d at 784. Thus, in general, an individual can seek a name change for any
reason that is not fraudulent, and marriage constitutes an appropriate reason for
a name change. Texas does not require an individual to change his or her name upon
marriage, but allows an individual to choose the surname of the spouse upon marriage,
retain the surname used before the marriage, or assume a hyphenated surname consisting
of the spouses’ two surnames. See Tex. Atty. Gen. Op. No. MW-225, 1980 WL 100182, at *1 (Tex. A.G. 1980); Tex. Atty.
Gen. Op. No. H-432 (Tex. A.G. 1974).
A marriage license supports a name change on a Texas driver’s license. Texas law provides
that “[w]hen a change of name occurs as a result of marriage, divorce, annulment,
or by the death of a spouse, the licensee may choose to keep the married name, revert
to the birth surname, or adopt a previous spouse’s surname.” See Tex. Admin. Code tit. 37, § 15.23(1)(A) (if the name is changed for reasons other
than marriage, a court order verifying a name change is required and the name shown
on the order is acceptable). The Texas Department of Public Safety’s website instructs
that individuals who want to change their name on their driver’s license must visit
a driver’s license office within 30 days of the change and, if it is a marriage-related
name change, the individual must bring a marriage license or divorce decree. See https://www.txdps.state.tx.us/DriverLicense/changes.htm (last visited Nov. 7, 2016). A marriage license supports name changes for various
other Texas licensing purposes as well. See e.g., Tex. Admin. Code tit. 22, § 163.5(b)(2) (Texas medical license); Tex. Admin. Code
tit. 22, § 185.4(b)(1) (physician assistant license); Tex. Admin. Code tit. 40, §
369.2(a) (occupational therapy license). Thus, marriage is an appropriate reason for
a name change and a marriage license is acceptable evidence under Texas law to change
a person’s name.
Accordingly, beginning June 26, 2015, same-sex married couples in Texas, like opposite-sex
married couples, may change their names based upon their marriage, and a completed
marriage license provides evidence of a valid marriage to support a name change.
2. The date Texas will begin issuing marriage licenses and certificates to same-sex
couples
As detailed above, pursuant to Obergefell and De Leon, same-sex marriage became legal in Texas on June 26, 2015. POMS RM 10212.035(A)(48), which presently instructs SSA to accept marriage documents issued to same-sex
couples for marriages that took place on June 26, 2015, or later in Texas as evidence
of a name change, accurately reflects this change in Texas 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 Texas
This question is not applicable to Texas because Texas does not currently have a state
law authorizing or recognizing a civil union or domestic partnership for same-sex
couples.
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 Texas because Texas 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, following the Supreme Court’s decision in Obergefell, SSA updated POMS RM 10212.035(A)(48) to instruct that SSA should accept marriage documents issued to same-sex couples
for marriages that took place on June 26, 2015, or later in Texas, as evidence of
a name change. POMS RM 10212.035(A)(48) should be updated to reference this precedent opinion regarding Texas laws
concerning changing a name in the event of a same-sex marriage, but no other changes
are necessary.
Traci B. Davis
Acting Regional Chief Counsel
By: Shalyn Timmons
Assistant Regional Counsel