SUMMARY
On July 18, 2014, the Tenth Circuit Court of Appeals (Tenth Circuit) issued a decision
in Bishop, et al., v. Smith, et al., 760 F.3d 1070 (10th Cir. 2014) (Bishop) holding that the Oklahoma’s constitutional prohibition of same-sex marriage was
unconstitutional under the United States Constitution. The Tenth Circuit issued a
stay of its decision, however, pending a petition for writ of certiorari in Bishop to the United States Supreme Court. As a result, same-sex marriages were not permitted
in Oklahoma pending the request for review. On October 6, 2014, the United States
Supreme Court denied the petition for writ of certiorari, thereby allowing the Tenth
Circuit’s ruling in Bishop to stand. That same day, the Tenth Circuit lifted its stay in Bishop, permitting same-sex marriages to take place in Oklahoma. Accordingly, beginning
October 6, 2014, the Social Security Administration (SSA) should accept same-sex marriage
certificates issued in Oklahoma on or after October 6, 2014, as valid evidence of
a name change.
BACKGROUND
On July 18, 2014, the Tenth Circuit issued a decision in Bishop affirming the district court’s decision declaring unenforceable the Oklahoma state
constitutional prohibition on issuing marriage licenses to same-sex couples.[1] . See Okla. Const. art. 2, § 35(A) (defining marriage as “only of the union of one man and
one woman”).[2] The Tenth Circuit stated that its holding in the companion case of Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. June 25, 2014) finding Utah’s same-sex marriage laws to
be unconstitutional, governed its ruling in the Bishop case concerning Oklahoma’s same-sex marriage laws. Bishop, 760 F.3d at 1074, 1079. The Court noted that in Kitchen, it held that: “(1) plaintiffs who wish to marry a partner of the same sex or have
such marriages recognized seek to exercise a fundamental right; and (2) state justifications
for banning same-sex marriage that turn on the procreative potential of opposite-sex
couples do not satisfy the narrow tailoring test applicable to laws that impinge upon
fundamental liberties” (strict scrutiny). Id. at 1074, 1079. Similarly, in Bishop, the Tenth Circuit held that: (1) plaintiffs in Bishop “seek to exercise the fundamental right to marry;” and (2) “state arguments that same-sex
marriage bans are justified by the need to communicate a conceptual link between marriage
and procreation, and promote sacrifice by parents for their children fail to satisfy
the narrow tailoring requirement of the applicable strict scrutiny test.” Id. at 1079-1082. The Tenth Circuit stated both Kitchen’s and Bishop’s “core holding” was “that states may not, consistent with the United States Constitution,
prohibit same-sex marriages.” Id. at 1082.
On the date it issued Bishop, the Tenth Circuit issued an immediate stay of its decision pending a petition for
writ of certiorari to the United States Supreme Court. Id. at 1096. On October 6, 2014, the United States Supreme Court denied the petition
for writ of certiorari, thus allowing the Tenth Circuit’s ruling in Bishop to stand. See Smith, et al. v. Bishop et al., No. 14-136, --- S.Ct. ----, 2014 WL 3854318 (U.S. Oct. 6, 2014) (“The petition for
writ of certiorari is denied.”). That same day, the Tenth Circuit lifted its stay
in Bishop, thereby allowing same-sex marriages to take place in Oklahoma. See Bishop et al. v. Smith et al., Nos. 14-5003, 14-5006, 2014 WL 4960523 (10th Cir. Oct. 6, 2014). In accordance with
Bishop, SSA determined that same-sex marriages were allowed to take place in Oklahoma beginning
on October 6, 2014. See Program Operations Manual System (POMS) General (GN) 00210.003 (updated on October
10, 2014, to show that Oklahoma permitted same-sex marriages beginning October 6,
2014, and recognized same-sex marriages from other states beginning October 6, 2014).
UPDATE TO POMS RM 10212.035
On October 10, 2014, SSA updated POMS RM 10212.035(A)(22) regarding Oklahoma’s recognition of same-sex marriage for purposes of name
change to state the following:
Accept marriage documents issued to same-sex couples for marriages that took place
on October 6, 2014, or later by jurisdictions (town, county, or State) in the State
of Oklahoma as evidence of a name change.
QUESTIONS PRESENTED
Because POMS RM 10212.035(D) provides that when a state legalizes same-sex marriage, the Regional Office should
obtain a Regional Chief Counsel opinion, we address the following questions:
-
1.
Whether the State permits parties to the same-sex marriage to change their names based
on the marriage;
-
2.
The date the State will begin issuing marriage licenses and certificates to same-sex
couples;
-
3.
Any change to the status of a prior or new civil union or domestic partnership entered
into in the same State; and
-
4.
Whether a prior entered civil union and domestic partnership must be dissolved before
entering a same-sex marriage.
POMS RM 10212.035(D) Evidence of a Name Change based on a U.S. Same-Sex Marriage.
DISCUSSION
-
1.
Whether Oklahoma permits parties to a same-sex marriage to change their names based
on the marriage
Yes. Pursuant to the Tenth Circuit’s Bishop decision and upon the Tenth Circuit’s lifting of the stay, same-sex marriage is legal
in Oklahoma as of October 6, 2014. As a result, no legal distinction exists between
same-sex married couples and opposite-sex married couples with respect to marriage
under Oklahoma’s laws; same-sex married couples in Oklahoma may change their names
based upon their marriage to the same extent as opposite-sex married couples.
Under Oklahoma common law, any adult or emancipated person could change his or her
name at will, without any legal proceedings, provided the person did not change his
or her name for an illegal or fraudulent purpose. Sneed v. Sneed, 585 P.2d 1363, 1365 (Okla. 1978). According to Oklahoma common law, a married woman acquired her husband’s surname
as a matter of custom. Id. at 1365. Enacted originally in 1953, the Oklahoma Change of Name Act, Okla. Stat.
Ann. tit. 12, §§ 1631 – 1637, now provides the exclusive method for changing a person’s
name, except when the change is by marriage, decree of divorce, or adoption. See Okla. Stat. Ann. tit. 12, § 1637 (2014). When a name change is sought as a result
of marriage, consistent with the Change of Name Act, the Oklahoma Marriage and Family
title 43 (“Title 43”) sets forth the procedures for changing a party’s legal name.
See Okla. Stat. Ann. tit. 43, §§ 5, 6, 8, 9 (2014).
Title 43 requires a party applying for a marriage license and certificate to provide
“the full name by which the party will be known after the marriage, which shall become
the full legal name of the party upon the filing of the marriage license and certificate
with the court.” Okla. Stat. Ann. tit. 43, § 5. The marriage license shall contain
the “full legal names of the persons authorized to be married by the license, the
full legal names by which the persons will be known after the marriage, their ages,
and their places of residence.” Id. at § 6. After the solemnized marriage ceremony, the “persons who have been married
in the ceremony shall endorse the marriage certificate with the names by which they
are to be known from the time of the marriage, as evidenced on the marriage license.”
Id. at § 8. The marriage license and completed marriage certificate are returned to the
judge or court clerk who issued the license and certificate, and then the judge or
court clerk records the marriage application, license and certificate. Id. at §§ 8, 9.[3] The completed marriage certificate evidences the legal name change.
Consistent with Title 43, the Oklahoma Administrative Code provides that a person
may request a change of name on a driver license or identification card where the
name change has resulted from either marriage or court action. See Okla. Admin. Code § 595:10-1-35(a), (b) (procedure for making a change of name on
a driver license or an identification card). Any person who requests a replacement
driver license to make a name change shall meet the primary and secondary identification
requirements of § 595:10-1-3(b)[4] in order to identify the person’s former name and must comply with the requirements
of § 595:10-1-18 in order to identify the person by his or her new name. Id. at § 595:10-1-35(c). The person requesting the name change “shall submit, without
exception, the certified document which indicates the name change,” and in the case
of marriage, the requisite documentation showing the new name must be the marriage
certificate. Id. at § 595:10-1-35(b), (c)(2). For a ceremonial Oklahoma marriage, the name change
“shall be to the name signed by the person on the marriage certificate.” Id. at § 595:10-1-35(c)(2). The name change resulting from the marriage “shall appear
on the driver license or identification card exactly as stated on the marriage certificate.”
Id. at § 595:10-1-35(d). The former name is entered into the “Alias” field in the driver
license or identification card database to provide historical information to the Department.
Id. at § 595:10-1-35(f). Thus, the marriage certificate is the requisite proof showing
the new legal name and allowing for the change of name to the Oklahoma driver license
and identification card.
Oklahoma also recognizes common-law marriage. [5] For a person requesting the name change on his or her Oklahoma driver license or
identification card pursuant to a common-law marriage, the person must submit an “Affidavit
of Common Law Marriage” containing the notarized signatures of the husband and wife,
in addition to both primary and secondary forms of identification. Id. at § 595:10-1-35(c)(3).
Thus, Oklahoma law recognizes marriage as a legal basis for changing a person’s name,
prescribes a specific process for effectuating such a name change, and the completed
marriage certificate (or Affidavit of Common Law Marriage) acts as evidence of this
new legal name. With the Tenth Circuit’s Bishop decision, same-sex married couples may change their names, based upon their marriage,
to the same extent as opposite-sex married couples. Thus, the State will accept a
same-sex marriage certificate to effectuate a legal name change.
-
2.
The date Oklahoma will begin issuing marriage licenses and certificates to same-sex
couples.
The Tenth Circuit in Bishop did not specify a particular date on which same-sex couples could begin receiving
marriage licenses. As explained above, when the Tenth Circuit issued its decision
in Bishop on July 18, 2014, the Court also issued a stay of its decision pending a petition
for writ of certiorari to the United States Supreme Court, which meant that same-sex
marriages were not permitted in Oklahoma at that time. Bishop, 760 F.3d at 1096. On October 6, 2014, the United States Supreme Court denied the
petition for writ of certiorari, thus allowing the Tenth Circuit’s ruling in Bishop to stand. See Smith, et al. v. Bishop et al., No. 14-136, --- S.Ct. ----, 2014 WL 3854318 (U.S. Oct. 6, 2014). That same day,
the Tenth Circuit lifted its stay in Bishop, permitting same-sex marriages to take place in Oklahoma. See Bishop et al. v. Smith et al., Nos. 14-5003, 14-5006, 2014 WL 4960523 (10th Cir. Oct. 6, 2014). Thus, SSA began
accepting Oklahoma same-sex marriage certificates as valid evidence of a name change
for same-sex marriages that occurred on October 6, 2014, or later.[6] See POMS GN 00210.003 (updated on October 10, 2014, to show that Oklahoma permitted same-sex marriages
beginning October 6, 2014, and recognized same-sex marriages from other states beginning
October 6, 2014).
-
3.
Any change to the status of a prior or new civil union or domestic partnership entered
into in Oklahoma.
Not Applicable. Oklahoma does not have a state law authorizing or recognizing a civil
union or domestic partnership for same-sex couples. The Tenth Circuit’s Bishop decision addresses only the legality of same-sex marriages performed in Oklahoma
under Oklahoma’s marriage laws. Thus, this question is not applicable to Oklahoma.
-
4.
Whether a prior entered civil union and domestic partnership must be dissolved before
entering a same-sex marriage.
Not Applicable. Oklahoma does not have a state law authorizing or recognizing a civil
union or domestic partnership for same-sex couples. The Tenth Circuit’s Bishop decision addresses only the legality of same-sex marriages performed in Oklahoma
under Oklahoma’s marriage laws. Thus, this question is not applicable to Oklahoma.
CONCLUSION
On October 10, 2014, SSA updated POMS RM 10212.035(A)(22) indicating that SSA should accept marriage documents issued to same-sex couples
for marriages that took place on October 6, 2014 or later, in Oklahoma, as evidence
of a name change. POMS RM 10212.035(A)(22) should be updated to reference this precedent opinion.
Michael McGaughran
Regional Chief Counsel
By: ______
Shalyn Timmons
Assistant Regional Counsel