PR 05005.039 Ohio

A. PR 09-168 Request for Regional Chief Counsel Opinion on State Law Recognition of Moorish A~ Marriages – REPLY Our Ref: 09-0190 ID 475971

DATE: September 4, 2009

1. SYLLABUS

A Moorish A~ Affidavit of Marriage/Domestic Partnership document would be recognized as a valid marriage document only if the participants also obtained a marriage license from the State in which the marriage took place, and the marriage was properly solemnized under State law. If the applicants and the celebrant do not acquire the appropriate licenses, Ohio would not recognize the Affidavit as a marriage document. Ohio does not recognize domestic partnership as an alternative to marriage.

2. OPINION

You asked whether Ohio would recognize a Moorish A~ Affidavit of Marriage/Domestic Partnership as a marriage record. You also asked whether the other states in Region V would recognize a similar document as a marriage record. We conclude that the states in Region V would recognize the Moorish A~ Affidavit as a record of a valid marriage as long as the participants also obtained a marriage license from the state. Given the confusion and blurring between the religious and the pseudo-governmental aspects of Moorish Science, we recommend that SSA request evidence of a marriage license whenever an individual is relying on a Moorish document as a marriage record. In the particular case you submitted for our review, it appears that a marriage license was not obtained for the Moorish marriage ceremony, and therefore the Affidavit should not be considered a marriage document for purposes of a name change.

BACKGROUND

On February 6, 2004, Reginald R. B~ signed a Certificate of Religious Creed (Certificate) with the Moorish Science Temple of America (MSTA), stating that he was joining the MSTA and thereby “gained Free Nationality and Birthrights as a Moorish-A~.” The Certificate also stated that Mr. B~ was taking the name Bandele A. Y~-E~ as his “religious name by birthright.” Mr. Y~-E~ apparently registered the Certificate with the Montgomery County (Ohio) Recorder of Deeds, and subsequently obtained an Ohio driver’s license under the name Bandele A. Y~-E~. He also obtained a name change on his Social Security record reflecting this new name in 2004.

Mr. Y~-E~ and Karen D. B~ (applicants) signed a certificate stating that they “agree[d] to be married as husband and wife” on May 28, 2009. Evidence of the marriage consists of a pre-printed certificate entitled “Moorish A~ Affidavit of Marriage/Domestic Partnership” (Affidavit). The Affidavit is subtitled “New Kemit, Montgomery County, Al M~ (America): Ohio.” The rest of the Affidavit is divided into two parts. The first part consists of a list of eight assertions. A preamble states that the participants have reached the age of majority, and have been “duly cautioned and affirmed.” In the preamble, the applicants’ pre-marriage names are listed as Bandele A~ Y~ E~ and Karen D. B~. The assertions include statements that the applicants (1) share a permanent residence; (2) are “Moorish A~ Free Nationals”; (3) are “domiciled in the united states of America (Al M~), Republic, Moorish Republic New Kemit; Montgomery County, Ohio;” (4) agree to be married “as husband and wife as given by the Moorish A~ National Sovereigns 1928;” (5) are not related; (6) know of no circumstances that would prevent the marriage “from being recognized under Moorish, U.S. Constitutional and Common laws; (7) take the “Moorish Free National” names of Bandele Y~ E~-A. and Karen D. B~ E~-A. as husband and wife; and (8) certify under penalty of perjury “under laws of the United States and Moorish Republic” that the Affidavit is correct.

The second half of the Affidavit consists of blanks for signatures, including that of the husband, the wife, two witnesses, a notary public, the “Person Solemnizing or performing Marriage,” and an “Authorized Moorish Official.” The applicants signed the spouses’ signature lines as Bandele Y. E~-A. and Karen D. B~ E~-A. The Affidavit was also signed by two witnesses, and bears the signature and seal of a Notary Public for the state of Ohio. The notary dated the document May 28, 2009. The person solemnizing the affidavit gave his title as “Grand Governor.” The Affidavit was apparently filed with the Montgomery County Recorder of Deeds. The Affidavit mentions the “Moorish Republic;” “Moorish A~ Free Nationals;” “Moorish Free National;” and “Moorish A~ National Sovereigns.” It contains no reference to the Moorish Science Temple of America.

We also conducted a search of the records of the Montgomery County (Ohio) Probate Court, which show that a marriage license was issued in 2009 for Bandele A~ Y~-E~ and Karen D. B~ (License No. 200900001220). However, the Montgomery Probate Court records state that the couple was married not on May 28, 2009 by an MSTA officiant, but on June 6, 2009, by Pastor Brodie R. M~. See http://www.mcohio.org/probate/ (Case Search; Marriage License). According to records of the Ohio Secretary of State, Brodie R. M~ is a pastor of the Zion Baptist Church in Dayton, Ohio. See http://www.sos.state.oh.us/SOS/ (Other Records, Search Licensed Ministers).

In June 2009, each of the applicants requested a change of name with the local district office in Ohio. Mr. Y~-E~ sought to change his name to Bandele Y~ E~-A.; Ms. B~ sought to change her name to Karen D. B~ El-A. The applicants submitted the Affidavit as evidence for the change of name. They also submitted Ohio driver’s licenses in their old names.

DISCUSSION

I. Documentary Evidence for SSN Card Based on Change of Name.

SSA requires an applicant for a Social Security Number (SSN) card to provide documentary proof of his/her identity, so that SSA can ascertain that the person is who he/she claims to be, and that he/she is the person to whom SSA originally assigned the SSN. POMS RM 00203.200(A), (C)(2). Following passage of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. 108-458, SSA developed standards to verify documents or records submitted by applicants to establish eligibility for original or replacement SSN cards. These standards took the form of priority lists of documents that are considered acceptable evidence of identity. POMS RM 00203.200(B). The priority is based on (1) the applicant’s age; (2) the applicant’s citizenship or alien status; and (3) the relative probative value of the documents. POMS RM 00203.200(B)(1). Applicants are required to submit the document with the highest probative value that is reasonably available. POMS RM 00203.200(B)(2). “Available” means that the document exists and the applicant can obtain or gain access to it within 10 business days. POMS RM 00203.200(E)(6)(3). For United States citizens aged 18 or older, an unexpired driver’s license, non-driver identity card, or passport is considered primary evidence of identity. POMS RM 00203.200(E)(6)(1).

When a number holder (NH) applies for a replacement SSN card to reflect a name change, the NH must submit at least one name change document that identifies him/her by both old and new name. POMS RM 00203.210(A)(1). The name change document must also show either an identifiable description or photograph of the person, or biographical data such as the age, date of birth, or parents’ names that can be compared with data that SSA already has about the NH. POMS RM 00203.210(A)(1). Generally, when the name change document lacks a photograph, description or biographical data, the NH must submit two additional identity documents listed in RM 00203.200(E), one with the old name, the other with the new name. POMS RM 00203.210(A)(1).

A marriage document is generally acceptable secondary evidence of identity for a legal name change if the document shows not only the applicant’s name, but also has either a photograph or biographical information such as his or her age, date of birth, or parents’ names, as long as the biographical information matches the data on the applicant’s latest record, and the marriage took place within the last two years. POMS RM 00203.200(E)(6)(2), (H)(2); POMS RM 00203.210(B)(1); POMS EM-06064(A)(1)-(3). If the marriage document does not meet these criteria, the marriage document may serve as evidence of the new name, but the applicant must also submit an identity document in the old name. POMS EM-06064(A)(3). The identity document in the old name must be acceptable under the priority lists in POMS RM 00203.200(E). See POMS EM-06064(A)(3). A driver’s license is considered primary evidence of identity. POMS RM 00203.200(E)(6)(1).

SSA recognizes that some states permit a married couple to take an entirely new surname. POMS RM 00203.210(B)(1)(d). When the new surname can be derived from the marriage document, the marriage document alone can be taken as evidence of identity for both the old and new names. POMS RM 00302.210(B)(1)(d), POMS EM-06064(A)(2). When the new name cannot be derived from the marriage document, the marriage document can be accepted as evidence of the event for the name change, and may be accepted as evidence of the old name if the document also includes appropriate biographical data, but cannot be accepted as evidence of identity for the new last name. POMS RM 00203.210(B)(1)(d), POMS EM-06064(A)(2). The applicants must submit an additional identity document showing the new last name. POMS RM 00203.210(B)(1)(d), POMS EM-06064(A)(2).

For all documents, SSA policy is that a document should be verified with the issuing agency if there is any reason to suspect that the document is questionable. POMS RM 00203.050.

Any document “issued by a fictitious governmental organization or a private organization that purport (sic) to be governmental organizations” is considered questionable. POMS RM 00203.200(F)(2)(c). The POMS expressly lists the Moorish Consulate and Moorish National Bureau of Vital Statistics as examples of entities purporting to be governmental organizations whose identity documents are considered questionable. POMS RM 00203.200(F)(2)(c). Such documents are not individually acceptable as identity documents, but are considered potentially useful to support secondary or approved third-level documentary evidence. POMS RM 00203.200(F)(2)(c) (NOTE).

However, while the Moorish Republic may be a fictitious government, federal courts have recognized that Moorish Science and the MSTA is “a bona fide religion.” Johnson-Bey v. Lane, 863 F.2d 1308, 1309 (7th Cir. 1988). The Seventh Circuit has recognized that some adherents of Moorish Science espouse the belief that, as Moorish nationals, they are not bound by the laws of the United States unless those laws are expressly mentioned in a 1784 treaty between the United States and M~co. United States v. James, 328 F.3d 953, 954 (7th Cir. 2003); see also www.moorishrepublic.com/Nationalitylaws.htm. The court also observed that, under some Moorish Science religious beliefs, “any adherent may adopt any title, and issue any documents, he pleases.” Id. Ohio has apparently licensed some Moorish ministers to perform marriages in the state. See http://www.sos.state.oh.us/SOS/recordsindexes.aspx.

II. Ohio Would Recognize the Moorish A~ Affidavit Only If the Marriage Was Properly Solemnized under Ohio Law. Under the POMS, a marriage document is acceptable secondary evidence to support a change of name on an NH’s SSN card. POMS RM 00203.200(E)(6)(1); POMS RM 00203.210(B)(1); POMS EM-06064(A)(1)-(3). An identity document issued by a fictitious governmental organization is not. POMS RM 00203.200(F)(2)(c). A document like the Moorish A~ Affidavit at issue in this case creates tension between these provisions, because while SSA may properly recognize groups such as the “Moorish Consulate” or “Moorish Republic” as fictitious governmental organizations that federal law does not recognize, federal law does recognize Moorish Science as a real religion, not a fictitious one, and SSA must treat it and respect it as such. Distinguishing between a Moorish group’s religious and pseudo-governmental aspects is complicated because the group itself may not recognize any distinction between the two. (For example, the Moorish Divine National Movement of the MSTA considers itself both a “Jural Society” and a “Religious Society.” See www.motheriscalling.com/THEMOVEMENT.html.)

In the case at issue here, the applicants sought replacement SSN cards, with both of them taking on an entirely new surname. It appears that Ohio would permit couples to assume an entirely new surname when they marry. See POMS PR 05005.039 (citing In re Bichnell, 771 N.E.2d 846, 848 (Ohio 2002).

In support of their applications to change to this new name, the couple in this case submitted the Moorish A~ Affidavit, which contains both applicants’ old and new names, but not the type of biographical data described in the POMS (i.e., age, date of birth, or parents’ names, which could be compared to the Numident record). See POMS RM 00203.200(E)(6)(2), (H)(2)(a). When the name change document does not include such biographical data, the applicant may submit an identity document with the old name in addition to the marriage document, and in such cases the marriage document will be considered the identity document for the new name, and the identity document for the old name will link the applicant to the old name on the Numident. EM 06064(A)(3). Here, the applicants also submitted Ohio driver’s licenses as evidence of their old names, so the lack of biographical information that would link them to the pre-marital name is satisfied.

It is not as clear whether the marriage document (assuming it qualifies as a marriage document) would be sufficient evidence of the new name requested, since the parties are requesting an entirely new surname. Agency policy suggests that a marriage document is generally not sufficient evidence of a name change if the parties are seeking an entirely new name that is not derived from the document. See EM 06064(A)(2) & attached table. A name is generally considered to be derived from the document if one spouse is taking the other spouse’s last name, or a compound name of each spouse’s original name is being adopted by one or both parties. Id. However, this policy is apparently based on the assumption that the marriage document would not otherwise reflect the new name, if the name is not derived from the parties’ premarital names. See EM 06064(A)(2) (assuming that entirely new name would not be shown on the marriage document); POMS RM 00203.210(D)(5) (explaining that marriage document would not generally support a name change to an entirely new name because the document “does not show the newly chosen surname”). Here, however, the document shows both the parties’ old names and the new surname that they intend to use. Therefore, if the Moorish A~ Affidavit qualifies as a marriage document from a ceremonial United States marriage, the applicants have arguably submitted sufficient documents to show identity. However, if the Affidavit does not qualify as a marriage document, it may be used to support other evidence of a name change, but is not acceptable by itself.

The Moorish A~ Affidavit has several indicia of a ceremonial marriage document. The fourth affirmation states that the parties “mutually consent and agree to be married as husband and wife.” The sixth affirmation also refers to “our marriage,” and the seventh affirmation identifies the applicants, under their new surname, as “husband and wife.” The applicants signed the Affidavit in the blanks for “husband’s signature” and “wife’s signature.” The Affidavit has a signature line for the “person solemnizing or performing Marriage.” That person gives his title as “Grand Governor,” which is a common title for the leader of an MSTA temple.

Other aspects of the Moorish A~ Affidavit are more ambiguous. Despite references to marriage on the Affidavit, the title suggests that the certificate could serve either as a marriage document or as a domestic partnership document. Ohio does not recognize domestic partnership as an alternative to marriage. Ohio Const. § 11, Art. XV. In addition, the Affidavit makes several references to Moorish National status, Moorish law, and the Moorish Republic. However, unlike the MSTA Certificate of Religious Creed that applicant Y~-E~ signed in 2004, the Affidavit contains no mention of the MSTA, or any other overtly religious group or society. The person who signed the Affidavit as the “person solemnizing or performing marriage” with the title “Grand Governor” signed the Certificate of Religious Creed as “Grand Elder in Islam.” Although “Grand Governor” is a common title for the leader of an MSTA temple, it is unclear whether the MSTA would recognize him as having governmental – or, from SSA’s point of view, pseudo-governmental – authority, as opposed to clerical or religious authority.

The Affidavit meets all of Ohio’s requirements for witnessing. In addition, because Ohio recognizes the MSTA as an Islamic sect, see Abdullah v. Fard, 974 F. Supp. 1112, 1114 (N.D. Ohio 1997), the Ohio Secretary of State would have to give a recognized MSTA temple leader a license to solemnize marriages if he presented the appropriate credentials. It appears that the Affidavit was filed with the Montgomery County Recorder of Deeds, which Ohio requires from the person who officiated over the marriage. Thus, Ohio would recognize the Moorish A~ Affidavit as a marriage document as long as the applicants obtained a marriage license, and the person who solemnized the marriage had a license to do so. If the applicants and the celebrant did not acquire the appropriate licenses, Ohio would not recognize the Affidavit as a marriage document. In this case, our search of Ohio public records indicated that the person who signed the Affidavit as the “person solemnizing or performing marriage” apparently did not have a license to solemnize marriages. See http://www.sos.state.oh.us/SOS/recordsindexes.aspx. In addition, while our search suggested that the applicants obtained a marriage license, the license was not used for a marriage by the MSTA. Rather, the Ohio records indicate that the license was used for a marriage in a Baptist church several days after the date on the Affidavit, and the marriage license was filed by a licensed Baptist minister. Therefore, we believe that under the facts of this case, Ohio would not recognize the Affidavit as a marriage document.

Ordinarily, under the procedures set forth in the POMS for changing Numident name data, SSA does not investigate ceremonial marriage documents to assess the validity of the marriage. However, given the well-documented history of Moorish groups acting in both a bone fide religious and a pseudo-governmental capacity, Moorish documents like the Affidavit in this case may be considered sufficiently ambiguous that it would seem reasonable for SSA to request that a marriage license also be provided, to ensure that the document relates to a state-recognized marriage, and is not merely a document issued under the authority of the Moorish pseudo-government. See POMS RM 00203.050.

SSA may wish to modify the procedures governing acceptable evidence so that where a marriage document appears questionable, the person processing the enumeration may ask the applicant if he or she obtained the requisite state marriage license. In some cases, as in Ohio, it may be easy to verify whether an applicant obtained a marriage license, or whether the person who celebrated the marriage was appropriately licensed. However, given the variety of Moorish groups, it seems likely that SSA will have to assess documents purporting to be Moorish or MSTA marriage records on a case-by-case basis. It is possible that some Moorish temples may employ a certificate where it is clear from its face that it constitutes an acceptable ceremonial marriage document. Other documents may be ambiguous, like the Affidavit, or clearly unacceptable.

III. Other States in Region V Would Also Consider Moorish Documents to Be Marriage Documents Only If the Parties Obtained a License for the Marriage.

The same tension between the religious and pseudo-governmental aspects of Moorish Science that applies in Ohio also applies in Illinois, Indiana, Michigan, Minnesota and Wisconsin. Each state requires couples to obtain a marriage license, and requires that the license be filed with the appropriate state official after the marriage. See 750 ILCS 5/201, 5/203 5/209; Ind. Code 31-11-4-1, 31-11-4-3, 31-11-4-13, -16; Mich. Comp. Laws §§ 551.2, 551.101, 551.104, 551.107; Minn. Stat. Ann §§ 517.01, 517.07; Wisc. St