TN 34 (01-15)

A. PR 15-058 Name Change Arising from a Same-Sex Marriage in Arizona

DATE: December 22, 2014

1. SYLLABUS

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

2. OPINION

SUMMARY

On October 17, 2014, the Federal District Court for the District of Arizona held that Arizona’s ban on same-sex marriage violated the equal protection clause of the United States Constitution.  That same day, by instruction of Arizona’s Attorney General, county clerks began issuing marriage licenses to same-sex couples.  Therefore, the Social Security Administration (SSA) should accept Arizona marriage documents issued to same-sex couples on or after October 17, 2014, as valid evidence of a name change.

BACKGROUND

Historically, Arizona laws prohibited same-sex marriage.  Article 30, Section 1, of the Arizona Constitution provided only a marriage between “one man and one woman” is valid or recognized as a marriage.  Ariz. Const. Art. 30, § 1; see also Ariz. Rev. Stat. § 25-101(c) (prohibiting same-sex marriage), § 25-125(A) (defining marriage as between a male and female person).   

However, on October 7, 2014, the United States Court of Appeals for the Ninth Circuit ruled invalid the laws of Nevada and Idaho that prohibited same-sex marriages because those laws denied same-sex couples equal protection of the law under the Fourteenth Amendment. Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); stay denied, 135 S.Ct. 345 (U.S. Oct. 10, 2014) (denying application for stay of mandate pending petition for certiorari).

On October 17, 2014, following the precedent set by the Ninth Circuit, the Federal District Court for the District of Arizona struck down Arizona’s ban on same-sex marriage in two separate rulings. See Majors v. Horne, 14 F. Supp. 3d 1313, 1315 (D. Ariz. 2014); Connolly v. Jeanes, No. 2:14-cv-00024 JWS, 2014 WL 5320642, at *1 (D. Ariz. Oct. 17, 2014) (Order and Opinion).  The District Court held Article 30, Section 1, of the Arizona Constitution and Arizona Revised Statute § 25-101(c), § 25-125(A) unconstitutional under the Equal Protection Clause of Fourteenth Amendment to the United States Constitution and permanently enjoined the enforcement of these state laws. Id.  The District Court also declined to stay the effect of the order. See id.

On the same day, Arizona Attorney General Tom Horne announced that the State would not appeal the Majors and Connolly decisions. Attorney General Tom Horne Will Not Appeal Same-Sex Marriage Ruling, press release from the Office of Arizona Attorney General Tom Horne (Oct. 17, 2014) (Press Release), available at https://www.azag.gov/press-release/attorney-general-tom-horne-will-not-appeal-same-sex-marriage-ruling.  Attorney General Horne also issued a letter to county clerks across the State explaining that, “effective immediately, the clerks of Arizona county superior courts cannot deny a marriage license to any other eligible licensees on the ground that the license permits a marriage between person of the same sex.”  Attorney General Tom Horne’s Letter to the Clerk of the Court (Oct. 17, 2014), available at http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/Horne-letter-10-17-141.pdf; see also Press Release (“I am issuing a letter today to the 15 county clerks of court with the directive that based on today’s decision by the Federal District Court, they can issue licenses for same sex marriages immediately”).    

QUESTIONS PRESENTED

We are providing this advice in accordance with the Program Operations Manual System (POMS) RM 10212.035, Evidence of a Name Change based on a U.S. Same-Sex Marriage.  Section D of RM 10212.035 provides that when a State legalizes same-sex marriages, an opinion from the Regional Chief Counsel should be obtained regarding the following information:

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

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

DISCUSSION

(1) The date the State will begin issuing marriage licenses and certificates to same-sex couples. As detailed above, with the District Court’s rulings in Majors and Connolly, same-sex marriage became legal in Arizona on October 17, 2014. See Majors, 14 F. Supp. 3d at 1315; Connolly, 2014 WL 5320642, at *1. We confirm that POMS RM 10212.35.A.2 accurately reflects this change in Arizona law.

(2) Whether the State permits parties to the same-sex marriage to change their names based on the marriage? Yes. Arizona maintains the common law principle that a person has a right to change his or her name without legal formality. See Laks v. Laks, 25 Ariz. App. 58, 60, 540 P.2d 1277, 1279 (Az. App. Ct. 1975); State v. Carroll, 21 Ariz. App. 99, 100, 515 P.2d 1197, 1198 (Az. App. Ct. 1973) (the common law gave a person the right to “assume a name” not given to him by his parents and allowed him to make valid contracts using his assumed name). In the absence of a statutory restriction, one may lawfully change his or her name without resort to any legal proceedings. Laks, 25 Ariz. App. at 60. We found no statute or regulation restricting parties of a same-sex marriage or opposite-sex marriage from changing their names based on their marriage. We therefore conclude that same-sex couples may change their names based on their marriage.

(3) Whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage? No. Arizona does not provide for the statewide recognition of civil unions or domestic partnerships. Also, Arizona has no legal authority providing for the recognition of a civil union or domestic partnership from other jurisdictions. Because Arizona does not recognize civil unions or domestic partnerships, a same-sex couple need not dissolve any previously formed civil union or domestic partnership prior to marriage. While the State of Arizona does not recognize civil unions or domestic partnerships, some Arizona cities provide a registry for domestic partners or civil union partners, granting some limited benefits. See, e.g., Phoenix City Code ch.18, art. X (providing for gender neutral domestic partnership limited to the right to visit with a domestic partner in a health care facility); Tucson City Code ch.17, art. IX (providing for gender neutral civil unions limited to the rights to visit with a partner in a health care facility and use Tucson City facilities as a spouse). However, the city laws relating to the creation of these partnerships do not supersede State law and, moreover, other government entities, employers, businesses or other parties are not required to recognize the partnership. See id. Therefore, a same-sex couple need not dissolve a city civil union or domestic partnership prior to entering into a same-sex marriage in Arizona.

(4) Any change to the status of a prior or new civil union or domestic partnership entered into in the same State. None. As discussed above, Arizona does not provide for the statewide recognition of civil unions or domestic partnerships. The effect of a marriage on a city-registered domestic partnership or civil union depends on the city where the couple registered their domestic partnership or civil union. For example, in Tucson, a civil union will terminate upon marriage recognized by the State of Arizona; but in Phoenix, a domestic partnership may continue to exist even after the partners enter into a marriage if the partners do not terminate the partnership. Compare Tucson City Code ch.17, art. IX, § 17-74 (“A civil union shall terminate upon … (3) The marriage, expressly recognized by the State of Arizona, of either one of the civil union partners.”), with Phoenix City Code ch.18, art. X, § 18-403 (“A domestic partnership ends when: 1. One of the domestic partners dies; or 2. A notice of termination of domestic partnership has been filed[.]”).