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