Background
On October 12, 2014, the United States District Court for the District of Alaska struck
down Alaska’s laws banning same-sex marriage and prohibiting recognition of lawful
same-sex marriages performed in other states, finding that these laws violated basic
due process and equal protection principles under the Fourteenth Amendment of the
United States Constitution. Hamby v. Parnell, No. 3:14-cv-89-TMB, 2014 U.S. Dist. LEXIS 145876 (D. Alaska Oct. 12, 2014). The
state filed a notice of appeal and sought a stay of the district court’s order pending
appeal. On October 15, 2014, the Ninth Circuit denied the stay pending appeal, but
granted a temporary stay to allow the state to seek a stay from the United States
Supreme Court. See Order Granting Temporary Stay, Hamby v. Parnell, No. 14-35856, Dkt. Entry 5 (9th Cir. Oct. 15, 2014). On October 17, 2014, the Supreme
Court denied the state’s application for a stay of the district court’s order. Parnell v. Hamby, No. 14A413, 2014 U.S. LEXIS 7011 (Oct. 17, 2014). The Ninth Circuit’s temporary
stay expired at noon on October 17, 2014, and same-sex marriage and the recognition
of lawful out-of-state same-sex marriages became legal in Alaska.[1]
Questions Presented
We are providing this legal opinion under the Program Operations Manual System (POMS)
Records Maintenance (RM) 10212.035, Evidence of a Name Change based on a U.S. Same-Sex
Marriage. Section D of RM
10212.035 requires the Regional Office to obtain a Regional Chief Counsel opinion when same-sex
marriage becomes legal in a state. The issues covered by this POMS provision are as
follows:
-
I.
The date the State will begin issuing marriage licenses and certificates to same-sex
couples;
-
II.
Whether the State permits parties to the same-sex marriage to change their names based
on the marriage;
-
III.
Any change to the status of a prior or new civil union or domestic partnership entered
into in the same State; and
-
IV.
Whether a prior entered civil union and domestic partnership must be dissolved before
entering a same-sex marriage.
Discussion
-
I.
The date the State will begin issuing marriage licenses and certificates to same-sex
couples.
Same-sex marriage became legal in Alaska on October 17, 2014, the date the Ninth Circuit’s
temporary stay expired.
The district court issued its order on October 12, 2014. However, the Ninth Circuit’s
temporary stay delayed effectuation of the district court’s order. Once the stay expired
on October 17, 2014, the State was required to begin issuing marriage licenses and
certificates to same-sex couples. Note that Alaska requires a three-day waiting period
for the issuance of a marriage license. Alaska Stat. § 25.05.091(a) (2014). Thus,
the first day that marriage licenses would be issued from applications filed after
the district court’s decision was Monday, October 20, 2014, although the state permitted
same-sex marriages as of October 17, 2014.[2]
-
II.
Whether the state permits parties to the same-sex marriage to change their names based
on the marriage.
Alaskan marriage licenses contain the names of both parties from before the marriage.
Alaska Stat. § 25.05.091(a) (2014). The marriage certificate does not provide a married
name for either party. Guidance from the State of Alaska Bureau of Vital Statistics
indicates that the marriage certificate will suffice as evidence for changing one’s
name on a driver’s license and for other records. See http://dhss.alaska.gov/dph/VitalStats/Pages/faqs.aspx#name (last visited Nov. 14, 2014). This is consistent with agency policy, which provides
a change of name can be based on a validly issued marriage certificate from any state
in the nation, so long as the new name can be derived from the names on the certificate.
POMS RM 10212.055(B).
In the case of Alaskan same-sex marriages, the district court’s order enjoined state
agencies, officers, and employees from enforcing Alaska’s statutory and state constitutional
bans on permitting or recognizing same-sex marriage. Hamby, 2014 U.S. Dist. LEXIS 145867, *34–35. Since marriage can be a basis for a name change,
it follows that married same-sex couples can use their marriage documents to support
a change of name.
-
III.
Any change to the status of a prior or new civil union or domestic partnership entered
into in the same state.
This issue does not apply to Alaska because the state had no formal provision for
any type of union other than marriage. Prior to Hamby, the state did not provide or recognize any alternative to marriage for same-sex
couples. See Alaska Stat. § 25.05.013(b) (2014) (“[a] same-sex relationship may not be recognized
by the state as being entitled to the benefits of marriage.”). Therefore, this issue
is inapplicable in Alaska.
-
IV.
Whether a previously entered into civil union or domestic partnership must be dissolved
before entering into a same-sex marriage
For the same reason as point III, supra, this issue does not apply to Alaska as there were no such relationships within the
state.
However, note that Hamby struck down the state provisions prohibiting recognition of same-sex relationships
from other states. Thus, a prior same-sex civil union or domestic partnership from
another state that, under that state’s laws, is converted to or deemed a marriage,
must now be recognized as one. A previous marriage that has not been dissolved renders
void any subsequent marriage entered into in Alaska. See Alaska Stat. § 25.05.021 (1) (2014).