TN 12 (01-13)

A. PR 13-037 Maryland Legislation Legalizing Same-Sex Marriages – INFORMATION

DATE: December 18, 2012

1. SYLLABUS

Accept marriage documents issued to same-sex couples for marriages that took place January 1, 2013 or later by jurisdictions (town, county or State) in Maryland as evidence of a name change.

2. OPINION

Brief Summary

The Civil Marriage Protection Act, enacted on March 1, 2012, and approved by voters in a referendum on November 6, 2012, allows same-sex couples to marry as of January 1, 2013. After December 6, 2012, when the Governor formally declared that the voters approved the legislation, state officials could begin issuing marriage licenses to same sex couples as long as the license bears an effective date no earlier than January 1, 2013. Furthermore, if a license is issued early with an effective date of January 1, 2013, the earliest a same-sex couple can have a marriage ceremony performed is January 1, 2013, because the waiting period will have been satisfied.

The Maryland Attorney General has issued guidance indicating that if same-sex couples were previously legally married in another state, they are unable to obtain a license in Maryland without first dissolving their previous union because they remain legally married. However, if a same-sex couple entered into a civil union together in another jurisdiction or a domestic partnership in Maryland, ¹ they may legally marry in Maryland without dissolving their previous union.

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. ² 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.

The Civil Marriage Protection Act, which was enacted on March 1, 2012, was approved by a referendum on November 6, 2012. On December 6, 2012, the Governor of Maryland, Martin O~, formally issued a proclamation declaring that the legislation was approved by voters. Although this legislation provides that same-sex couples can be licensed to marry on January 1, 2013, the Maryland Attorney General, Douglas , has interpreted this legislation to permit same-sex couples to be issued marriage licenses any time after the Governor’s proclamation as long as the license bears an effective date no earlier than January 1, 2013. ³ Questions Relating to Implementation of Chapter 2 of the Maryland Laws of 2012, 97 Op. MD Att’y Gen. 72 (Nov. 29, 2012). ⁴

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

The State of Maryland permits parties to a same-sex marriage to change their names based on the marriage in the same manner as any other person changing his or her name due to marriage. ⁵ Although Maryland has a civil process for a name change in which a party can petition for a court-ordered name change pursuant to MD Rules, Rule 15-901 (West 2012), these formal procedures are not required for a name change following a marriage. Stuart v. Bd. of Supervisors of Elections for Howard County 266 Md. 440, 295 A.2d 223 (1972).

Maryland statutes do not specifically permit a name change following a marriage by merely using the married name and producing a marriage license. Nevertheless, our office has confirmed with Dawne, the Clerk of Court for Allegany County, that the State of Maryland actually allows this practice. For example, name changes following a marriage are routinely performed by changing one’s name with the MVA and then using the new name. ⁶ Dawne also confirmed that a party to a same-sex marriage may change his or her name based upon the marriage as has been the practice for parties who marry persons of the opposite sex.

At the request of Amy, Clerk of Court for Dorchester County, Sharon and David of the Department of Legal Affairs, Administrative Office of the Courts, prepared a memorandum dated December 13, 2012, addressing the issue of whether a person who enters into in a same-sex marriage in Maryland has the ability to change his or her name legally to that of his or her same-sex spouse. Memorandum from the Dep’t of Legal Affairs, Admin. Office of the Courts (Dec. 13, 2012) (on file with undersigned). The memorandum clarified that the Civil Marriage Protection Act would give a person who enters into a same-sex marriage in Maryland the ability to change his or her name to that of his or her same-sex spouse when the law takes effect on January 1, 2013.

3) Whether a previously entered into same-sex marriage, civil union, or domestic partnership between the parties must be dissolved before the parties can enter into a same-sex marriage in Maryland.

The Maryland Attorney General has issued guidance to the clerks of the various circuit courts in Maryland regarding the ability of couples who have previously entered into a union in another state – whether it be a domestic partnership, a civil union, or a same-sex marriage – to obtain a marriage license and be married in Maryland without first dissolving their previous union. Questions Relating to Implementation of Chapter 2 of the Maryland Laws of 2012, 97 Op. MD Att’y Gen. 72 (Nov. 29, 2012). Specifically, the Attorney General explained that same-sex couples, if already legally married in another state, may not get a marriage license in Maryland. Id. Instead, same-sex couples who were legally married in other states prior to the adoption of same-sex marriage in Maryland remain legally married, and thus, unable to obtain a license under Maryland law without first obtaining a divorce. Id.

However, with regard to a “civil union” entered into in a state that allows that contract, the Attorney General concluded, “Nothing in either current law or Chapter 2 prevents a marriage between parties who are already in a civil union entered into in another state.” Id; see also Md. Code Ann., Fam. Law, § 2-402(b) (West 2012) (requiring applicants for a marriage license to state the “marital status of each party” and “whether each party was married previously and the date and place of each death or judicial determination that ended any former marriage.”) (emphasis added).

The Attorney General further explained that the Maryland Legislature, in enacting Chapter 2, did not address the legal effect of out-of-state civil unions and in-state domestic partnerships on a same-sex couple’s ability to marry each other in Maryland. Id. Therefore, in absence of language expressly prohibiting parties to a civil union or domestic partnership from entering into a Maryland marriage, the Attorney General determined that the plain text reading of Chapter 2 would yield the conclusion that the parties may do so. Id.

In fact, the Attorney General indicated that, in cases in which same-sex couples previously entered into a Maryland domestic partnership, it is even clearer that the parties may marry under Chapter 2 because the rights afforded domestic partners under Maryland law are a subset of those afforded married couples. Id; see generally Md. Code Ann., Health-Gen. § 6-201 through 6-203 (West 2012). Notably, Maryland’s domestic partnership law, enacted in 2008, permits “two individuals” to enter into a domestic partnership who “are not married or in a civil union or domestic partnership with another individual” Md. Code Ann., Health-Gen. § 6-101 (a) (West 2012). The Attorney General clarified that under the existing Maryland domestic partnership law, parties who are already in a marriage, civil union, or domestic partnership may not form a new domestic partnership “with another individual,” but apparently may do so with their existing partner. ⁷ Id.

4) Whether there is any change to the status in prior or new domestic partnerships entered into in the same state.

Finally, with regard to your question regarding any change in status of prior or new domestic partnerships entered into in Maryland, we note that Maryland’s domestic partnership legislation has not been repealed ⁸ and neither the same-sex marriage legislation, nor the Attorney General opinion addresses any changes to the status of such partnerships. Therefore, we conclude that new domestic partnerships can be created in Maryland and that there is no change in status of prior domestic partnerships.

Eric P. Kressman
Regional Chief Counsel
By: _______________

Tara A. Czekaj

Assistant Regional Counsel

Footnotes:

[1]

Maryland statutes provide for domestic partnerships, but not civil unions. Md. Code Ann., Health-Gen. § 6-201 (West 2012).

[2]

We note that the November 27, 2012, request from your office asks for information regarding civil unions. However, the recent legislation in Maryland has approved same-sex marriages, not civil unions, so we have provided the information appropriate to such legislation as directed in the POMS.

[3]

Although marriage licenses are typically not effective immediately due to the 2-day statutory waiting period, the Attorney General has determined that issuing licenses with a delayed effective date renders moot any questions about the waiting period since the waiting period will, in effect, be longer than the statute requires. See Md. Code Ann., Fam. Law § 2-405(d)(1) (West 2012). In other words, the earliest a same-sex couple can have a marriage ceremony performed is on January 1, 2013.

[4]

The Attorney General Opinion refers to the Civil Marriage Protection Act as the “implementation of Chapter 2 of the Maryland Laws of 2012, which amended § 2-201 of the Family Law Article so as to remove the statutory prohibition on same-sex marriages” (hereinafter Chapter 2).

[5]

Significantly, the website for the Motor Vehicle Administration (MVA) for the state of Maryland specifically states, “Customers who have entered into a same-sex marriage, and present the necessary documentation, will be processed the same as customers of opposite genders.” Driver Licensing Questions – name change on driver’s license, http:// www.mva.maryland.gov/About-MVA/FAQ/default.htm (last visited Dec. 6, 2012) (also explaining that the MVA will recognize a valid same-sex marriage that was performed in a jurisdiction that has passed and enacted legislation that permits this action as valid in Maryland for the purposes of name change and vehicle titling).

[6]

However, it should be noted that, for a name change on a Maryland driver’s license due to marriage, the Maryland MVA requires that the party change his or her name with the Social Security Administration first and then provide documentation from SSA (either a new social security card or a printout reflecting the name change) with a marriage certificate certified by a court (certified copy of marriage license from the clerk of court) to perform a name change with the MVA. This information can be electronically located at http:// www.mva.maryland.gov/Driver-Services/Apply/license.htm (last visited Dec. 18, 2012).

[7]

Similarly, although not addressed in Chapter 2 or in Maryland case law, the Attorney General stated, “Synthesizing the law in this developing area yields the conclusion that couples need not dissolve an out-of-state civil union to marry each other here in Maryland, but must do so if they wish to marry third parties.” Questions Relating to Implementation of Chapter 2 of the Maryland Laws of 2012, 97 Op. MD Att’y Gen. 72 (Nov. 29, 2012). 

[8]

See Md. Code Ann., Health-Gen. § 6-101 (West 2012).