Accept marriage documents issued to same-sex couples for marriages that took place June 25, 2014 to July 18, 2014 and on October 06, 2014 or later by jurisdictions (town, county or State) in the State of Colorado as evidence of a name change.

Question Presented

Colorado issued same-sex marriage licenses from June 25, 2014, to July 18, 2014, and again beginning on October 6, 2014. Should SSA accept marriage documents reflecting that a same-sex marriage occurred during these time-periods as evidence of a name change event?

Short Answer

Yes. SSA should accept marriage documents reflecting that a Colorado same-sex marriage occurred between June 25, 2014, and July 18, 2014, as evidence of a name change event. SSA should also accept marriage documents reflecting that a Colorado same-sex marriage occurred on October 6, 2014, and thereafter as evidence of a name change event.

Background

On June 25 and July 18, 2014, respectively, the Tenth Circuit Court of Appeals affirmed district court decisions finding that Utah’s and Oklahoma’s bans on same-sex marriage were unconstitutional. See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (Utah); Bishop v. United States, 760 F.3d 1070 (10th Cir. 2014) (Oklahoma). The Court imposed stays in both cases pending appeal. Even so, some Colorado counties began issuing same sex-marriage licenses based on the Tenth Circuit’s decisions in these cases. (Because Colorado is within the Tenth Circuit, these decisions are binding precedent for Colorado.)

On July 23, 2014, a federal district court judge issued an injunction to prevent Colorado from enforcing laws that banned same-sex marriage. See Burns v. Hickenlooper, 2014 WL 3634834 (D. Colo. July 23, 2014).

During this time, same-sex marriage cases were also pending in Colorado state courts. On July 9, 2014, a state court judge held in consolidated cases from two counties (Adams and Denver) that Colorado’s ban on same-sex marriage was unconstitutional. See Brinkman v. Long, No. 13-cv-32572 (Colo. Dist. Ct. July 9, 2014).^[1] The judge immediately imposed a stay of that decision, but later declined the State’s motion to stop counties from issuing same-sex marriage licenses. See Brinkman, No. 13-cv-32572 (Dist. Ct. July 14, 2014).^[2] The State appealed, and on July 18, 2014, the Colorado Supreme Court ordered clerks to stop issuing same-sex marriage licenses. See Brinkman v. Long, No. 2014SA212 (Colo. July 18, 2014).^[3]

Separate litigation involving Boulder County also ensued during July 2014, ultimately resulting in an order that the clerk stop issuing licenses. See Colorado v. Hall, 2014CV30833 (Colo. Dist. Ct. July 10, 2014) (order denying injunction to stop marriage licenses from being issued)^[4] ; Colorado v. Hall, No. 2014CA1368 (Colo. Ct. App. July 24, 2014) (order denying motion to stay issuance of same-sex marriage licenses)^[5] ; Colorado v. Hall, No. 2014SC5852 (Colo. July 29, 2014) (staying clerk from issuing marriage licenses).^[6]

On October 6, 2014, the United States Supreme Court declined to hear the appeals in Kitchen and Bishop, letting stand the Tenth Circuit’s decisions that Utah’s and Oklahoma’s bans on same-sex marriage were unconstitutional. See Herbert v. Kitchen, 135 S. Ct. 265 (2014); Smith v. Bishop, 135 S. Ct. 271 (2014). The same day, the Tenth Circuit lifted the previously imposed stays in Kitchen and Bishop, see Herbert v. Kitchen, 2014 WL 4960471 (10th Cir. 2014); Bishop v. Smith, 2014 WL 4960523 (10th Cir. 2014), and counties in Colorado resumed issuing same-sex marriage licenses. The Colorado Supreme Court later dismissed the State’s appeal in Brinkman, see Brinkman, No. 2014SA212 (Colo. Oct. 7, 2014),^[7] and the federal district court made permanent the Burns injunction against enforcing any ban on same-sex marriage, see Burns, 2014 WL 5312541 (D. Colo. Oct. 17, 2014).

Additionally, on June 26, 2015, the U.S. Supreme Court held that same-sex couples may exercise the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015). The Court held State laws constitutionally 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.

Discussion

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 POMS RM 10212.015. This opinion focuses only on the first evidentiary requirement, the name change event. See POMS RM 10212.010. SSA policy requires SSA to “[a]ccept same-sex marriage documents validly issued within the 50 U.S. States . . . . which permits ceremonial same-sex marriage as evidence of a name change.” POMS RM 10212.035.

Pursuant to section D of POMS RM 10212.035, when a state legalizes same-sex marriage, the Regional Office should obtain a legal opinion from the Regional Chief Counsel requesting the following information, which we discuss below:

1. 1. 

   the date the State will begin issuing marriage licenses and certificates to same-sex couples;

2. 2. 

   whether the State permits parties to the same-sex marriage to change their names based on the marriage;

3. 3. 

   any change to the status of prior or new civil union or domestic partnership entered into in the same State; and

4. 4. 

   whether a prior entered civil union and domestic partnership must be dissolved before entering into a same-sex marriage.

1. 1. 

   The date the State will begin issuing marriage licenses and certificates to same-sex couples.

Colorado issued same-sex marriage licenses between June 25, 2014 and July 18, 2014, and again beginning on October 6, 2014.^[8]

2. Whether the State permits parties to the same-sex marriage to change their names based on the marriage.

Colorado permits parties to change their names based on marriage. In general, Colorado allows an individual to change his or her name as long as he or she follows the procedural requirements and the court determines the name change “would be proper and not detrimental to the interests of any other person.” See Colo. Rev. Stat. Ann. § 13-15-101(2)(a). With regard to whether marriage documents support a request for a name change, the Colorado marriage statutes do not directly address the issue. See Colo. Rev. Stat. Ann. §§ 14-2-101, et. seq. However, Colorado does accept marriage certificates and civil union certificates as proof of a name change for the purpose of changing the name on an individual’s driver’s license. See https://www.colorado.gov/pacific/dmv/change-your-name (last visited Feb. 16, 2017). These rules do not specifically refer to same-sex marriages. However, the court decisions discussed above hold that there is no legal distinction between same-sex couples and opposite-sex couples with respect to marriage. Therefore, SSA should accept as evidence of a name change event same-sex marriage documents for marriages that occurred in Colorado between June 25, 2014, and July 18, 2014, and on October 6, 2014, and thereafter.

3. Any change to the status of prior or new civil union or domestic partnership entered into in the same State.

Since May 2013, Colorado law has allowed couples to enter into civil unions regardless of gender.^[9] See Colo. Rev. Stat. Ann. §§ 14-15-101, et. seq. As discussed above, Colorado initially began allowing same-sex marriage by virtue of judicial, rather than legislative action. However, on June 8, 2016, the governor signed into law legislation clarifying that any civil union between the same two parties who later marry is automatically “merged” into the marriage, and that the “civil union terminates as of the date of the solemnization of the marriage.” See S.B. 16-150, 70th Gen. Assemb., 2nd Reg. Sess. (Colo. 2016);^[10] Colo. Stat. Ann. § 14-15-118.5(1). The status of civil unions has not otherwise changed since Colorado began allowing same-sex marriage.

4. Whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage.

Pursuant to legislation passed on June 8, 2016, prior civil unions must be dissolved before entering into a marriage, unless the civil union and marriage are between the same two parties. See S.B. 16-150, 70th Gen. Assemb., 2nd Reg. Sess. (Colo. 2016); Colo. Stat. Ann. §§ 14-2-105(b.5), 14-2-110(a.5), 14-15-118.5, 18-6-201.

Conclusion

SSA should accept Colorado same-sex marriage documents issued from June 25, 2014, to July 18, 2014, and from October 6, 2014, and thereafter as evidence of a name change event.

SSA cannot process the name change from O~ to B~-O~ based on the marriage certificate. The “new name” is an entirely new last name that cannot be derived from the marriage document. 

QUESTION PRESENTED

You asked whether Colorado statutes permit the number holder (NH) Anita O~, based on marriage, to change her last name to B~-O~, an entirely new last name that is a combination of part of her husband’s first name (Benjamin) and his legal last name (O~).

SHORT ANSWER

The marriage certificate, the name change document, does not show the NH’s new last name. Moreover, Colorado does not have a statute that expressly allows the NH, based on marriage, to change her last name to an entirely new last name. Therefore, the agency may not accept the marriage certificate as evidence that the NH legally changed her surname from O~ to B~-O~.

BACKGROUND

Anita C. O~ married Benjamin I. O~ in C~, Colorado, on August XX, 2010. The marriage certificate and the marriage license list the NH’s name as Anita C. O~ and the groom’s name as Benjamin I. O~. The NH also submitted a Security Employment Authorization Card in the name of Anita C. B~-O~ that was issued in November 2010 by the U.S. Department of Homeland. In October 2010, the agency granted the NH’s request for a Social Security Card that shows her last name as O~. (Presumably, she filed the request before she got married.) She is now requesting a replacement card in the name of Anita B~-O~. The new last name is a combination of her husband’s first name (Benjamin) and his legal last name (O~).

DISCUSSION

Colorado follows the common law rule that an individual may change his/her name at will, as long as the change is not for a fraudulent purpose. See In re K~, 537 P.2d 1085, 1086 (Colo. Ct. App. 1975).^[11] Under current agency policy, however, SSA will not honor a request to change a name merely on a common law right to use a new name. Rather, the individual must show evidence of a name change event, evidence of a new name, and evidence of his/her identity. See POMS RM 10212.055. Marriage is considered an acceptable name change event for a change in the last name, if the new name can be derived from the name change document (the marriage certificate). ^[12] See POM RM 10212.055.

The POMS permits any of the following changes to the last name, using the names shown on the name change document:

• •

  bride takes the groom’s last name;

• •

  groom takes bride’s last name;

• •

  spouse or partner takes the other parties’ last name;

• •

  spouse or partner takes one part of the other parties’ compound name; [or]

• •

  compound name (with or without hyphen) of each spouse’s or partner’s original surname for either or both parties[.]

POMS RM 10212.055(B). Here, B~-O~, the NH’s new last name, is a combination of her husband’s first name and his legal last name. Since the new last name does not match any of the variations noted above, the agency cannot derive the new last name from the marriage certificate.

However, the POMS permits “[a]n entirely new first and last name as shown on the name change document,” if a state statute expressly allows a person to choose an entirely new first and last name in the event of marriage. POMS RM 10212.055(B) (Exception). Here, B~-O~, the NH’s new last name, is not shown on the marriage certificate. Moreover, Colorado does not have a statute that expressly allows a person to choose an entirely new last name. ^[13] See Colo. Rev. Stat. Ann. § 14-2-105 (Marriage license and marriage certificate). And for the purpose of issuing a driver’s license or identification card, Colorado regulations provide that a certified marriage certificate may be used to modify the applicant’s legal name – but similar to agency policy, name change as a result of marriage in Colorado is subject to the following conventions:

• •

  the existing last name is replaced with the spouse’s last name;

• •

  the existing last name is added as a second middle name and the spouse’s last name becomes the applicant’s last name;

• •

  the existing last name replaces the existing middle name and the spouse’s last name becomes the applicant’s last name;

• •

  the spouse’s last name replaces the existing middle name and the existing last name remains the applicant’s last name; (the spouse’s last name is added before or after the existing last name via a hyphen or space and becomes the applicant’s last name.

1 Colo. Code Regs. § 204-13:2.0 (2.3.5.1). These rules indicate that Colorado would not recognize the NH’s name change based on the marriage certificate, and that Colorado does not allow a person to choose an entirely new last name in the event of marriage. Therefore, SSA may not accept the marriage certificate as evidence that the NH changed her last name to B~-O~, an entirely new last name.

CONCLUSION

As required by agency policy, the marriage certificate (the name change document), does not show the NH’s new last name. Moreover, Colorado does not have a statute that expressly allows the NH to change her last name to an entirely new last name based on marriage. Therefore, the marriage certificate is not sufficient evidence to support the NH’s request to change her last name from O~ to B~-O~.

John J. L~

Acting Regional Chief Counsel, Region VIII

By: Yvette G. K~

Assistant Regional Counsel