TN 42 (09-15)

A. PR 15-168 Alaska State Law Marriage Certificate for Same-Sex Couples as Legal Name-Change Document

July 24, 2015

1. Syllabus

Accept marriage documents issued to same-sex couples for marriages that took on October 17, 2014 or later by jurisdictions (town, county or State) in the State of Alaska as evidence of a name change.

2. Opinion

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:

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

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

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.

Discussion

1. 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

2. 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.

3. 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.

4. 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).

Footnotes:

[1]

The Court of Appeals granted the parties’ joint motion to dismiss the appeal on July 1, 2015. Hamby v. Parnell, No. 14-35856, Dkt. Entry 25 (9th Cir. July 1, 2015).

[2]

This opinion applies to name-change applications based upon marriage documents issued to same-sex couples for marriages that took place on October 17, 2014 or later. In the event a name-change application based upon marriage documents issued to same-sex couples for marriages that took place prior to that date is received, a legal opinion from the Regional Chief Counsel should be sought.