PR: Title II Regional Chief Counsel Precedents
TN 22 (03-14)
A. PR 14-057 New Mexico State Law – Marriage Certificate for Same-Sex Couple as Legal Name Change Document (NH Jason, NH Savannah , NH Pamala, NH Bonnie) -- REPLY
DATE: February 27, 2014
1. SYLLABUS
A New Mexico marriage application or marriage license that has not been solemnized and submitted as evidence to support a name change based on a same-sex marriage is not evidence that a properly solemnized marriage has taken place and is therefore insufficient evidence to support a legal name change. However, the individual’s validly issued same-sex marriage documents for a solemnized marriage certificate issued August 21, 2013 or later by jurisdictions (town, county or State) in New Mexico is acceptable evidence of a name change event.
2. OPINION
ISSUE PRESENTED
This memorandum is in response to your request for a legal opinion as to whether the following August 2013 “altered” New Mexico same-sex marriage documents four individuals presented to the Social Security Administration (SSA or agency) in support of their name change applications (Forms SS-5) are acceptable evidence for a legal name change on the Social Security number (SSN) card and record:
Jayson is seeking to change his last name to C~ and in support presented copies of a marriage application and marriage license showing that the Dona Ana County, New Mexico clerk issued the license on August 30, 2013, authorizing the marriage between Jayson and Devin, and a copy of a recorded marriage certificate showing that Jayson married Devin on August 30, 2013;
Bonnie is seeking to change her last name to S~ and in support presented copies of a marriage application and marriage license showing that the Bernalillo County, New Mexico clerk issued the license on August 28, 2013, authorizing the marriage between Bonnie and Jennifer, and a copy of a recorded marriage certificate showing that Bonnie married Jennifer on August 28, 2013;
Savannah is seeking to change her last name to R~-H~ and in support presented a copy of a marriage license showing that the Dona Ana County, New Mexico clerk issued the license on August 21, 2013, authorizing the marriage between Savannah and Pamala; and
Pamala is seeking to change her last name to R~-H~ and in support presented a copy of a marriage license showing that the Dona Ana County, New Mexico clerk issued the license on August 21, 2013, authorizing the marriage between Savannah and Pamala.
You did not elaborate on what you believe to be “altered” with regard to these documents; however, we believe that you are referring to the fact that the marriage license applications and certificates for Jayson and Bonnie use gender-neutral language of “applicant” and “spouse,” instead of “male applicant,” “female applicant,” “bride,” and “groom” as the marriage application and certificate forms set out in N.M. Stat. Ann. § 40-1-18 currently provide. There does not appear to be any “altered” language in the marriage license for Savannah and Pamala.
ANSWER
On December 19, 2013, the New Mexico Supreme Court issued an opinion in Rose Griego, et al. v. Maggie Toulouse Oliver, et al., and State of New Mexico, ex rel., New Mexico Association of Counties, et al. v. Honorable Alan Malott, 316 P.3d 865 (N.M. Dec. 19, 2013) (G~) holding that same-sex marriage is legal in New Mexico. Following G~, the agency updated Program Operations Manual System (POMS) Records Maintenance (RM) 10212.035(A) to include New Mexico as a state that allows for a legal name change based upon evidence of a valid New Mexico same-sex marriage. See POMS RM 10212.025(A)(16) (“Accept marriage documents issued to same-sex couples for marriages that took place on August 21, 2013 or later by jurisdictions (town, county or State) in the State of New Mexico as evidence of a name change.”). Therefore, SSA should accept Jayson’s same-sex marriage certificate as acceptable evidence of a legal name change event to change his last name to that of his spouse’s last name, C~, and Bonnie’s same-sex marriage certificate as acceptable evidence to change her last name to that of her spouse’s last name, S~. We note that a mere photocopy of the marriage certificate will not suffice. Rather, the agency must have an original or certified copy of the marriage certificate to process the legal name change request. See POMS RM 10210.085(A) (acceptable forms of evidence for an SSN). However, Savannah and Pamala provided only a marriage license, and the license alone is insufficient documentary evidence to show a legal name change event necessary to process their legal name change requests. We advise SSA to request a copy of their marriage certificate documenting that the required solemnized marriage ceremony took place in order to process their name change requests.
BACKGROUND
Recent Developments in New Mexico’s Law Regarding Same-Sex Marriage
New Mexico’s state marriage laws are unique among states in this country because there is no express New Mexico constitutional provision or statutory law allowing or prohibiting same-sex marriage. Beginning in August 2013, some New Mexico country clerks began issuing marriage licenses to same-sex couples at the direction of several state district courts’ orders, and some county clerks began issuing same-sex marriage licenses voluntarily without a court order. See G~, 316 P.3d at 872-873. These actions led to a request to the New Mexico Supreme Court for a writ of superintending control to clarify whether same-sex marriage was legal in New Mexico. The New Mexico Constitution provides that the New Mexico Supreme Court has the authority to issue writs of superintending control over all inferior courts. N.M. Const. art. 6, § 3. The New Mexico Supreme Court may exercise its power of superintending control “to control the course of ordinary litigation in inferior courts . . . even when there is a remedy by appeal, where it is deemed to be in the public interest to settle the question involved at the earliest moment.” G~, 316 P.3d at 873, quoting State ex rel. Schwartz v. Kennedy, 904 P.2d 1044, 1049 (N.M. 1995).
See id. At the time the petition for writ of superintending control was filed with the New Mexico Supreme Court on September 5, 2013, eight New Mexico counties were issuing marriage licenses to same-sex couples and twenty-four counties were not. See id. at 873. By the time the New Mexico Supreme Court held oral argument on October 23, 2013, New Mexico county clerks in a number of counties had already issued more than 1,466 marriage licenses to same-sex couples, including the four name change applicants at issue in this legal opinion request. See id.
On December 19, 2013, the New Mexico Supreme Court issued the G~ decision holding that same-sex marriage is legal in New Mexico. The New Mexico Supreme Court held that denying same-sex couples the right to marry, and thus depriving them and their families of the rights, protections, and responsibilities of civil marriage, violated the Equal Protection Clause of the New Mexico Constitution. G~, 316 P.3d at 871-872, 888-889. Further, the New Mexico Supreme Court held that, when read as a whole, the existing New Mexico marriage statutes had the effect of precluding same-sex couples from marrying and benefiting from rights, protections, and responsibilities flowing from a civil marriage. Id. Therefore, the New Mexico Supreme Court held that the existing New Mexico marriage laws were unconstitutional. See id. However, the New Mexico Supreme Court neither specified a particular date on which same-sex couples could begin receiving marriage licenses, nor struck down the existing marriage statutes. See G~, 316 P.3d at 889 (“Having declared the New Mexico marriage laws unconstitutional, we now determine the appropriate remedy. We decline to strike down our marriage laws because doing so would be wholly inconsistent with the historical legislative commitment to fostering stable families through this marriage laws.”). Instead, in terms of a remedy, the Court ordered that whenever reference is made in New Mexico statutes, rules, regulations, or the common law to “marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower, or any other word, which, in context denotes a marital relationship, the same shall apply to same-sex couples who choose to marry.” Id. The Court ordered that “civil marriage” is to be construed to mean “the voluntary union of two persons to the exclusion of all others,” and that “all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.” Id. The Court also ruled that with regard to the forms section 40-1-18 requires for the marriage application, marriage license, and marriage certificate, the county clerks shall use “gender-neutral language.” Id.; see N.M. Stat. Ann. § 40-1-18. The Court affirmed the district courts that had, in August and September 2013, ordered county clerks to issue marriage licenses to same-sex couples, The New Mexico Supreme Court was not specific with regard to which district court decisions it was affirming; however, it appears that the Court is referring to Judge Alan’s September 3, 2013, district court decision that led to the intervenors’ request that the New Mexico Supreme Court issue a writ of superintending control (Judge Alan’s declaratory judgment, writ of mandamus, and injunction requiring county clerks in two counties to issue same-sex marriage licenses), as well as to other district courts’ decisions that issued writs and orders requiring county clerks in other counties to issue same-sex marriage licenses that the Court mentions in its decision. See G~, 316 F.3d at 872-873 (identifying these lower district court cases as Griego v. Oliver, No. D-202-CV-2013-02757, 2nd Judicial Dist. Ct. Sept. 3, 2013; State ex rel. Stark v. Martinez, No. D-820-cv-2013-295, 8th Judicial Dist. Ct. Aug, 27, 2013; State ex rel. Newton v. Stover, No. D-132-cv-2013-00094, 1st Judicial Dist, Ct., Aug. 29, 2013; Katz v. Zamarripa, No. D-608-cv-2013-00235, 6th Judicial Dist. Ct. Sept. 5, 2013).
granted a writ of superintending control, and ordered lower courts in the state “to mandate compliance with the holdings and rationale of this opinion” to recognize the legality of same-sex marriage in New Mexico. G~, 316 P.3d at 873, 889.
Although the G~ decision did not specify a particular effective date for recognition of same-sex marriages in New Mexico, the remedy the New Mexico Supreme Court provided and the circumstances underlying the writ of superintending control support the position that the Court intended to recognize as valid same-sex marriage licenses issued, and same-sex marriages performed pursuant to such licenses as reflected in marriage certificates, beginning August 21, 2013, the date a New Mexico county clerk first issued a same-sex marriage license in the events that ultimately led to the New Mexico Supreme Court’s decision in G~. The Dona Ana County clerk voluntarily (without a court order requiring him to do so) issued the first marriage licenses to same-sex couples on August 21, 2013. See G~, 316 P.3d at 872; see also http://www.donaanacounty.org/content/ellins-do%C3%B1-ana-county-issuing-same-gender-marriage-licenses (last visited February 26, 2014).
DISCUSSION
SSA Law and Policy Regarding Legal Name Changes Based on Ceremonial Marriage
For SSA enumeration purposes, a legal name consists of a first name and a last name (or surname). See 20 C.F.R. § 422.110(a); POMS RM 10212.001(A). SSA policy and procedures provide that in general, a U.S. born person’s legal name is the name shown on his or her U.S. birth certificate unless the person’s name has changed based on certain events, such as a marriage or a valid court order for a name change. See POMS RM 10212.001(B)(1), RM 10212.010. The Intelligence Reform and Terrorism Prevention Act of 2004 requires SSA to “establish minimum standards for verification of documents or records submitted by an individual to establish eligibility for an original or replacement social security card . . . .” Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7213(a)(1)(B); see also POMS RM 10210.001 (changes in SSN card evidence requirements), RM 10210.405(B) (proof of identity for an SSN card). An applicant for a name change must submit documentary evidence that the agency regards as convincing evidence of the applicant’s identity. See 20 C.F.R. §§ 422.107(a), (c), 422.110(a); see also POMS RM 10210.015(A), RM 10212.001, RM 10212.015. After the applicant submits evidence that the agency regards as convincing evidence of identity and legal name change, the agency may issue a replacement card bearing the same number and the applicant’s new name. See 20 C.F.R. § 422.110(a).
Thus, to process a name change on the SSN card, the applicant must submit evidence of:
the name change event that complies with agency’s evidence requirements;
the new name; and
the applicant’s identity as shown on the latest numident record.
See POMS RM 10212.015(A), RM 10212.055. The focus of this legal opinion request concerns the requirement for evidence of a legal name change event. The Dallas Regional Office legal opinion request does not appear to seek our opinion as to whether the evidence presented is also sufficient to show the four applicants’ new names and to verify their identity. However, for completeness, we note that with regard to evidence of the new name to be shown on the SSN card, for a marriage, the agency is to accept a name change document based on marriage as evidence of the new name to be shown on the card, if the new name can be derived from the document. See POMS RM 10212.015(C), RM 10212.055(B). Any of the following changes to the last name, using the names shown on the evidence, are permitted: bride takes the groom’s last name; groom takes the bride’s last name; spouse takes the other parties’ last name; spouse takes one part of the other parties’ compound surname; or compound name (with or without hyphen) of each spouse’s original surname for either or both parties. See POMS RM 10212.055(B). The four applicants are seeking new last names consistent with this policy that allows new last names based on marriage. In addition, their new names can be derived from their marriage documents.
Concerning evidence of identity, we note that a marriage document can be used as acceptable evidence of identity if the marriage took place in the prior two years, and the marriage document shows the applicant’s prior name and either his or her age, birth date, or parents’ names, and if this information matches the data on the applicant’s numident record. See 20 C.F.R. § 422.107(c) (documentary evidence of identity may consist of a driver’s license, identity card, school record, medical record, marriage record, passport, Department of Homeland Security document, or other similar document serving to identify the individual; the document must contain sufficient information to identify the applicant, including his or her name and (1) age, date of birth, or parents’ names; and or (2) a photograph or physical description of the individual); POMS RM 10212.015(D), RM 10212.020, RM 10212.055(D). The four applicants have provided sufficient evidence of identity.
Jayson’s marriage occurred within the past two years and his marriage documents contain this information (showing his prior name, date of birth, and place of birth), but we note that his date of birth shown on his marriage documents (03/30/89) does not match the date of birth shown on his numident record (03/30/86). However, he also submitted a driver’s license with his prior name and a date of birth (03/30/86) that matches his numident record sufficient to show his identity. Bonnie’s marriage occurred within the past two years and her marriage documents contain the requisite information (showing her prior name, date of birth, and place of birth) that matches her numident record, and she has also provided her driver’s license (also showing her prior name and date of birth). Savannah and Pamala have presented only a marriage license, and this document alone is insufficient to show their identity because it does not also show their age, date of birth, or parents’ names. However, they have also submitted driver’s licenses showing their prior names and dates of birth to show their identity. Thus, it appears that based on the evidence provided to us with this legal opinion request, the four applicants have submitted sufficient evidence to support their new last names and to establish their identity.
As noted, SSA permits legal name changes based upon sufficient evidence of a marriage. See POMS RM 10212.010 (U.S. ceremonial marriage, U.S. common law marriage, and U.S. recognized same-sex marriage are acceptable bases for a name change), RM 10212.015(B) (to process a name change on the SSN, the agency must obtain acceptable evidence of a name change event), RM 10212.025 (evidence of a name change based on U.S. ceremonial marriage), RM 10212.035 (evidence of a name change based on U.S. recognized same-sex marriage). SSA policy defines “marriage records” as the original marriage record kept by the official custodian, and “marriage documents” as the means by which a marriage record is documented. See POMS RM 10212.025. Marriage certificates, souvenir certificates, and certified copies of marriage records are considered marriage documents and acceptable evidence of a name change. See id. SSA accepts original records or documents, properly certified extract records, and properly certified copies of the original record as evidence for an SSN. See POMS RM 10210.085(A) (acceptable forms of evidence for an SSN).
With regard to U.S. recognized same-sex marriage, SSA policy and procedures require the agency to “[a]ccept same-sex marriage documents validly issued by a U.S. state, which permits ceremonial same-sex marriage as evidence of a name change.” POMS RM 10212.035. Further, SSA policy explains that “[f]or SSA purposes, an applicant’s state of residence is not a factor in determining whether the same-sex marriage document is acceptable evidence for a name change.” Id. Thus, the key issue for purposes of this legal opinion request concerns whether the four individual applicants’ same-sex marriage documents presented for purposes of a legal name change have been “validly issued” by New Mexico. POMS RM 10212.035(A) lists the states that recognize same-sex marriage and permit name changes based upon a valid same-sex marriage. Following the New Mexico Supreme Court’s decision in G~ on December 19, 2013, the agency updated POMS RM 10212.035(A) to include New Mexico. See POMS RM 10212.035(A)(16). We address New Mexico law with regard to marriage and name changes below.
New Mexico Same-Sex Marriage Certificates Are Acceptable Evidence to Support a Legal Name Change
With regard to name changes in New Mexico, we note generally that under New Mexico common law, a person may lawfully assume any name that he or she wants so long as no fraud or misrepresentation is involved. See Petition of Variable for Change of Name v. Nash, 190 P.3d 354, 356 (N.M. App. 2008); In re M~, 106 P.3d 584 (N.M. App. 2004). In addition, though not required to do so, any New Mexico resident may, upon petition to the state district court of the district in which the petitioner resides and upon filing of a required notice with proof of publication, have his or her name changed by a court order provided no sufficient cause is shown to the contrary. N.M. Stat. Ann. §§ 40-8-1, 40-8-2; see also N.M. Stat. Ann. § 24-14-25 (amending name on birth certificate upon a court order); N.M. Admin. Code § 7.2.2.17(C), (D) (amending name on birth and death certificates upon a court order).
As to whether marriage documents support a request for a name change, we first consider the types of marriage documents that are produced with a New Mexico marriage and the documents submitted with the four applications at hand in this legal opinion request. Jayson and Bonnie provided copies of their marriage applications, marriage licenses, and marriage certificates, showing that they participated in solemnized marriage ceremonies. Savannah and Pamala provided only copies of their marriage licenses.
New Mexico does not recognize common law marriage. See Rivera v. Rivera, 243 P.3d 1148, 1151 (N.M. App. 2010). For a marriage to be valid under New Mexico law it must be formally entered into by contract and an appropriate official must solemnize the marriage. See id. at 1150-1153 (examining whether a New Mexico marriage was valid given that the parties’ obtained a Texas, not New Mexico, marriage license, refusing to find the marriage void based only upon the lack of a New Mexico license, but also noting that New Mexico law continues to clearly require marriage licenses as evidence that the marriage fully complies with the law); see also N.M. Stat. Ann. § 40-1-1 (marriage is a civil contract), 40-1-2 (the civil contract of marriage is entered into when an authorized person solemnizes the marriage). “Solemnize” means to join in marriage before witnesses by means of a ceremony. N.M. Stat. Ann. § 40-1-2.
Each couple wanting to marry must first complete a marriage application in order to obtain a marriage license from a New Mexico county clerk, and then once the county clerk has issued the license, the couple must present the marriage license and participate in a marriage ceremony before a person authorized to solemnize the marriage. See N.M. Stat. Ann. § 40-1-2 (an authorized person must solemnize a marriage), § 40-1-10 (couples wishing to marry “shall first obtain a license from a county clerk of this state and following a ceremony conducted in this state file the license for recording in the county issuing the license.”), § 40-1-14 (“persons authorized to solemnize marriage shall require the parties contemplating marriage to produce a license signed and sealed by the county clerk issuing the license.”). Finally, the person performing the required marriage ceremony must complete the marriage certificate for filing with the county clerk as part of the county records. See N.M. Stat. Ann. § 40-1-15 (the authorized person solemnizing the ceremony has “the duty . . . to certify the marriage to the county clerk within ninety days from the date of the marriage ceremony,” and the county clerk shall file the marriage certificate and record it as a permanent record in the county records), § 40-1-19(B) (“a person who performs the marriage ceremony or certifies a marriage to the county clerk, who neglects or fails to comply with the provisions of Chapter 40, Article 1 NMSA 1978 and any person who willfully violates the law by deceiving or attempting to deceive or mislead any officer or person in order to obtain a marriage license or to be married contrary to law is upon conviction guilty of a misdemeanor”). Thus, the marriage license authorizes the parties to marry, and the marriage certificate is the document establishing that the required solemnized marriage ceremony before an authorized person occurred. The New Mexico marriage statutes provide a uniform form of application, marriage license, and marriage certificate for county clerks to use. See N.M. Stat. Ann. §§ 40-1-17, 40-1-18.
The New Mexico marriage statutes do not expressly address name changes that may occur pursuant to a marriage. See N.M. Stat. Ann. §§ 40-1-1 – 40-1-20, 40-2-1 – 40-2-9. For example, New Mexico does not have a specific statute providing that a marriage certificate, in and of itself, effectuates a legal name change. However, New Mexico statutory law and administrative regulations provide that a marriage certificate is sufficient proof of identity to change an individual’s legal name on his or her driver’s license. See e.g., N.M. Stat. Ann. § 66-5-22 (“when the name of a [driver’s] licensee is changed by marriage or otherwise, the person shall, within ten days, notify the [motor vehicle] division . . . . In the event of a change of name, the license must be delivered by the licensee to the division and the change of name be accomplished on the license itself. The division may require such evidence as it deems satisfactory regarding the change of name.”); N.M. Admin. Code § 18.19.5.12(E)(11) (applicants for a New Mexico identification card, driving permit, or driver’s license must provide documentary proof of their identity, and a marriage certificate a state or U.S. territory issued is acceptable proof of identity); see also New Mexico Motor Vehicle Division’s website at http://www.mvd.newmexico.gov/proof-of-identity.aspx (an original or certified copy of marriage certificate a state or U.S. territory issued is an acceptable document of identity) (last visited Feb. 26, 2014); http://www.mvd.newmexico.gov/apply-for-new-driver-s-license.aspx (to apply for a driver’s license, you must present proof of identity, such as a marriage certificate) (last visited Feb. 26, 2014); http://www.mvd.newmexico.gov/resources-frequently-asked-questions.aspx?1f7fcb5548ee4e17a47ff4e27e571a01blogPostId=e2f7bf9262214ff6858912b34b00ff1d#/BlogContent<http://www.mvd.newmexico.gov/resources-frequently-asked-questions.aspx?1f7fcb5548ee4e17a47ff4e27e571a01blogPostId=e2f7bf9262214ff6858912b34b00ff1d> (to change name on driver’s license, an applicant must present an original or certified copy of a marriage license, court order, divorce decree, or birth certificate) (last visited Feb. 26, 2014); Los Alamos County, New Mexico website at http://www.losalamosnm.us/clerk/Pages/MarriageLicenseFAQs.aspx (under marriage license frequently asked questions and “How do I change my last name?”, the county website explains that after the marriage ceremony is performed and certificate recorded, a certified copy of the marriage certificate will be issued and can be taken to any State Motor Vehicle Department for a driver’s license with the new last name and to the Social Security office for a new last name) (last visited Feb. 26, 2014).
In addition, New Mexico administrative regulations specify that a marriage certificate is sufficient proof to change an individual’s legal name on his or her medical license, and other professional and occupational licenses. See e.g., N.M. Admin. Code § 16.10.1.8 (marriage certificate is sufficient proof to change name on medical board record or license); N.M. Admin. Code § 16.7.1.8(C)(1) (marriage certificate is sufficient proof to change name on massage therapist license); N.M. Admin. Code § 16.12.2.10(S) (marriage certificate sufficient proof to change name on nurse license); N.M. Admin. Code § 16.13.15.9 (marriage certificate sufficient proof for a name change to a nursing home administrator license). Therefore, New Mexico will accept a marriage certificate for purposes of a legal name change.
As explained in detail above, as of the New Mexico Supreme Court’s G~ 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 for purposes of a legal name change. Following the G~ decision, the agency updated POMS RM 10212.035(A)(16) to provide that the agency should accept marriage documents issued by New Mexico county clerks to same-sex couples for marriages that took place on August 21, 2013, or later in New Mexico.
Jayson’s New Mexico Marriage Certificate is Sufficient Evidence to Support a Legal Name Change
Jayson is seeking to change his last name to C~ and presented copies of a marriage application and marriage license showing that the Dona Ana County, New Mexico clerk issued the license on August 30, 2013, authorizing the marriage between Jayson and Devin, and a copy of a recorded marriage certificate showing that an appropriate official solemnized the marriage between Jayson and Devin on August 30, 2013. Jayson’s New Mexico marriage certificate is sufficient documentary evidence of a U.S. recognized same-sex marriage to allow SSA to change his legal name on his SSN card and record.
Bonnie’s New Mexico Marriage Certificate is Sufficient Evidence to Support a Legal Name Change
Bonnie is seeking to change her last name to S~ and presented copies of a marriage application and marriage license showing that the Bernalillo County, New Mexico clerk issued the license on August 28, 2013, authorizing the marriage between Bonnie and Jennifer, and a copy of a recorded marriage certificate showing that an appropriate official solemnized the marriage between Bonnie and Jennifer on August 28, 2013. Bonnie’s New Mexico marriage certificate is sufficient documentary evidence of a U.S. recognized same-sex marriage to allow SSA to change her legal name on her SSN card and record.
Savannah’s New Mexico Marriage License is Insufficient Evidence to Support a Legal Name Change
Savannah is seeking to change her last name to R~-H~ and presented a copy of a marriage license showing that the Dona Ana County, New Mexico clerk issued the license on August 21, 2013, authorizing the marriage between Savannah and Pamala. The New Mexico marriage license, in and of itself, that Savannah presented to SSA, does not show that the legal name change event (marriage) occurred and does not comport with New Mexico’s or SSA’s legal name change requirements. Therefore, the marriage license is insufficient documentary evidence of a U.S. recognized same-sex marriage to allow SSA to change her legal name on her SSN card and record.
Pamala’s New Mexico Marriage License is Insufficient Evidence to Support a Legal Name Change
Pamala is seeking to change her last name to R~-H~ and presented a copy of a marriage license showing that the Dona Ana County, New Mexico clerk issued the license on August 21, 2013, authorizing the marriage between Savannah and Pamala. The mere New Mexico marriage license alone, that Pamala presented to SSA, does not show that the legal name change event (marriage) occurred and does not comport with New Mexico’s or SSA’s legal name change requirements. Therefore, the marriage license is insufficient documentary evidence of a U.S. recognized same-sex marriage to allow SSA to change her legal name on her SSN card and record.
The “Altered” New Mexico Marriage Documents Are Valid
You have asked whether the “altered” nature of the August 2013 same-sex marriage documents the four applicants submitted impacts the validity. As noted, you did not elaborate on what you believe to be “altered” with regard to these documents. The marriage license applications and marriage certificates for Jayson and Bonnie use gender-neutral language of “applicant” and “spouse.” Whereas, the marriage application and marriage certificate forms set out in N.M. Stat. Ann. § 40-1-18 use gender-specific terms of “male applicant,” “female applicant,” “bride,” and “groom.” The gender-neutral language of their marriage applications and certificates does not impact their validity. In fact, in G~, the New Mexico Supreme Court expressly ruled that with regard to the forms section 40-1-18 requires for the marriage application, marriage license, and marriage certificate, the county clerks shall use “gender-neutral language.” See G~, 316 P.3d at 889; N.M. Stat. Ann. § 40-1-18. Therefore, Pamela’s and Bonnie’s marriage license applications and certificates that utilize gender-neutral language comply with this mandate in G~.
Furthermore, even before the G~ decision mandating gender-neutral language, New Mexico law required only that county clerks use forms “substantially” similar to the uniform forms provided for in section 40-1-18. See N.M. Stat. Ann. § 40-1-17 (“To ensure a uniform system of records of all marriages contracted and the better preservation for future reference, the form of application, license, and certificate shall be substantially as provided in section 40-1-18.”). Jayson’s and Bonnie’s applications and certificates merely changed the terms “male applicant” and “female applicant” to “applicant,” and changed the terms “bride” and “groom” to “spouse,” and therefore, these forms remain substantially similar to those provided in N.M. Stat. Ann. § 40-1-18. Thus, the gender-neutral language of Jayson’s and Bonnie’s marriage documents does not impact their validity. Finally, we note that Savannah’s and Pamala’s marriage license does not appear to be altered and uses language identical to the marriage license form that N.M. Stat. Ann. § 40-1-18 provides.
CONCLUSION
Following the G~ decision, the agency updated POMS RM 10212.035(A)(16) to provide that the agency should accept marriage documents issued by New Mexico county clerks to same-sex couples for marriages that took place on August 21, 2013, or later in New Mexico. Therefore, SSA may accept Jayson’s New Mexico marriage certificate as evidence to support a legal name change. In addition, SSA may accept Bonnie’s New Mexico marriage certificate as evidence to support a legal name change. However, Savannah and Pamala’s marriage license alone is insufficient evidence of the legal name change event. Under New Mexico law, the license authorizes the marriage and the certificate is proof that the required solemnized marriage ceremony took place in compliance with the law. In this denial, SSA should explain that the denial of their application is not because of the same-sex marriage but because of the deficient documentation to show that the required solemnized marriage ceremony occurred.
Michael McGaughran,
Regional Chief Counsel
By: ____________
Shalyn Timmons
Assistant Regional Counsel
B. PR 14-051 New Mexico State Law – Marriage Certificate for Same-Sex Couple as Legal Name Change Document -- REPLY
DATE: February 21, 2014
1. SYLLABUS
Accept marriage documents issued to same-sex couples for marriages that took place August 21, 2013 or later by jurisdictions (town, county or State) in New Mexico as evidence of a name change. Same-sex marriage documents issued in New Mexico prior to August 21, 2013 require a legal opinion regarding their acceptability as evidence of a name change . See PR 02712.034 – New Mexico.
2. OPINION
SUMMARY
On December 19, 2013, the New Mexico Supreme Court issued an opinion in Rose Griego, et al. v. Maggie Toulouse Oliver, et al., and State of New Mexico, ex rel., New Mexico Association of Counties, et al. v. Honorable Alan M. Malott, 316 P.3d 865 (N.M. Dec. 19, 2013) holding that the New Mexico Constitution requires that same-sex couples be allowed to marry and enjoy all rights, protections, and responsibilities that derive from civil marriage under New Mexico law. Accordingly, beginning December 19, 2013, the Social Security Administration (SSA) should accept New Mexico same-sex marriage certificates as valid evidence of a name change. It is our opinion that the New Mexico Supreme Court’s December 19, 2013 decision in G~ validates all of the 2013 marriage licenses issued by county clerks to same-sex couples, and the corresponding same-sex marriage ceremonies performed pursuant to the licenses as reflected in marriage certificates, effective at least as of August 21, 2013, the date a county clerk issued the first marriage license to a same-sex couple during the events that led to the New Mexico Supreme Court decision in G~ on the legality of same-sex marriage in New Mexico
BACKGROUND
On December 19, 2013, the New Mexico Supreme Court issued an opinion in Rose Griego, et al. v. Maggie Toulouse Oliver, et al., and State of New Mexico, ex rel., New Mexico Association of Counties, et al. v. Honorable Alan M. Malott, 316 P.3d 865 (N.M. Dec. 19, 2013) (G~) holding that same-sex marriage is legal in New Mexico. The New Mexico Supreme Court held that denying same-sex couples the right to marry, and thus depriving them and their families of the rights, protections, and responsibilities of civil marriage, violated the Equal Protection Clause of the New Mexico Constitution. G~, 316 P.3d at 871-872, 888-889. Further, the New Mexico Supreme Court held that, when read as a whole, the existing New Mexico marriage statutes had the effect of precluding same-sex couples from marrying and benefiting from rights, protections, and responsibilities flowing from a civil marriage. Id. Therefore, the New Mexico Supreme Court held that the existing New Mexico marriage laws were unconstitutional. See id. However, the New Mexico Supreme Court neither specified a particular date on which same-sex couples could begin receiving marriage licenses, nor struck down the existing marriage statutes. See G~, 316 P.3d at 889 (“Having declared the New Mexico marriage laws unconstitutional, we now determine the appropriate remedy. We decline to strike down our marriage laws because doing so would be wholly inconsistent with the historical legislative commitment to fostering stable families through these marriage laws.”). Instead, in terms of a remedy, the Court ordered that whenever reference is made in New Mexico statutes, rules, regulations, or the common law to “marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower, or any other word, which, in context denotes a marital relationship, the same shall apply to same-sex couples who choose to marry.” Id. The Court ordered that “civil marriage” is to be construed to mean “the voluntary union of two persons to the exclusion of all others,” and that “all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.” Id. The Court also ruled that with regard to the forms section 40-1-18 requires for the marriage application, marriage license, and marriage certificate, the county clerks shall use “gender-neutral language.” Id.; see N.M. Stat. Ann. § 40-1-18. The Court affirmed the district courts that had, in August and September 2013, ordered county clerks to issue marriage licenses to same-sex couples, 1 granted a writ of superintending control, and ordered lower courts in the state “to mandate compliance with the holdings and rationale of this opinion” to recognize the legality of same-sex marriage in New Mexico. G~, 316 P.3d at 873, 889.
Although the G~ decision did not specify a particular effective date for recognition of same-sex marriages in New Mexico, the remedy the New Mexico Supreme Court provided and the circumstances underlying the Writ of Superintending Control support the position that the Court intended to recognize as valid same-sex marriage licenses issued, and same-sex marriages performed pursuant to such licenses, beginning August 21, 2013, the date a New Mexico county clerk first issued a same-sex marriage license.2
QUESTIONS PRESENTED
We are providing this legal opinion in accordance with 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 provides that when a state legalizes same-sex marriage, the Regional Office should obtain a Regional Chief Counsel opinion requesting the following information, which we discuss below:
The date the State will begin issuing marriage licenses and certificates to same-sex couples;
Whether the State permits parties to the same-sex marriage to change their names based on the marriage;
Any change to the status of a prior or new civil union or domestic partnership entered into in the same State; and
Whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage.
POMS RM 10212.035(D).
DISCUSSION
1) The date the State will begin issuing marriage licenses and certificates to same-sex couples.3
The New Mexico Supreme Court in G~ did not specify a particular date on which same-sex couples could begin receiving marriage licenses. As noted, New Mexico county clerks began issuing marriage licenses to same-sex couples on August 21, 2013. It is our opinion that beginning December 19, 2013, the date the New Mexico Supreme Court rendered its decision in G~, SSA should accept New Mexico same-sex marriage certificates as valid evidence of a name change. Further, it is our opinion that the New Mexico Supreme Court’s December 19, 2013 decision in G~ validates all of the 2013 marriage licenses New Mexico county clerks issued to same-sex couples, as well as the corresponding same-sex marriage ceremonies performed pursuant to the licenses as reflected in marriage certificates, effective at least as of August 21, 2013, the date a county clerk first issued a marriage license to a same-sex couple during the events that led to the New Mexico Supreme Court decision in G~ on the legality of same-sex marriage in New Mexico.
2) Whether the State permits parties to the same-sex marriage to change their names based on the marriage.
Yes. Pursuant to the New Mexico Supreme Court’s G~ decision, no legal distinction exists between same-sex married couples and opposite-sex married couples with respect to marriage under New Mexico laws. The Court ordered that whenever New Mexico statutes, rules, regulations, or the common law reference “marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower, or any other word, which, in context denotes a marital relationship, the same shall apply to same-sex couples who choose to marry.” G~, 316 P.3d at 889. Further, the Court ordered that “civil marriage” is to be construed to mean “the voluntary union of two persons to the exclusion of all others,” and that “all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.” Id. Accordingly, as of the New Mexico Supreme Court’s December 19, 2013 G~ decision, same-sex married couples may change their names based upon their marriage to the same extent as opposite sex-married couples.
With regard to name changes in New Mexico, we note generally that under New Mexico common law, a person may lawfully assume any name that he or she wants so long as no fraud or misrepresentation is involved. See Petition of Variable for Change of Name v. Nash, 190 P.3d 354, 356 (N.M. App. 2008); In re M~, 106 P.3d 584 (N.M. App. 2004). In addition, though not required to do so, any New Mexico resident may, upon petition to the state district court of the district in which the petitioner resides and upon filing of a required notice with proof of publication, have his or her name changed by a court order provided no sufficient cause is shown to the contrary. N.M. Stat. Ann. §§ 40-8-1, 40-8-2; see also N.M. Stat. Ann. § 24-14-25 (amending name on birth certificate upon a court order); N.M. Admin. Code § 7.2.2.17(C), (D) (amending name on birth and death certificates upon a court order).
With regard to whether marriage documents support a request for a name change, the New Mexico marriage statutes do not expressly address name changes pursuant to a marriage. See N.M. Stat. Ann. §§ 40-1-1 – 40-1-20, 40-2-1 – 40-2-9. For example, New Mexico does not have a specific statute providing that a marriage certificate, in and of itself, effectuates a legal name change. However, New Mexico statutory law and administrative regulations provide that a marriage certificate is sufficient proof of identity to change an individual’s legal name on his or her driver’s license. See e.g., N.M. Stat. Ann. § 66-5-22 (“when the name of a [driver’s] licensee is changed by marriage or otherwise, the person shall, within ten days, notify the [motor vehicle] division . . . . In the event of a change of name, the license must be delivered by the licensee to the division and the change of name be accomplished on the license itself. The division may require such evidence as it deems satisfactory regarding the change of name.”); N.M. Admin. Code § 18.19.5.12(E)(11) (applicants for a New Mexico identification card, driving permit, or driver’s license must provide documentary proof of their identity, and a marriage certificate a state or U.S. territory issued is acceptable proof of identity); see also New Mexico Motor Vehicle Division’s website at http://www.mvd.newmexico.gov/proof-of-identity.aspx (an original or certified copy of marriage certificate a state or U.S. territory issued is an acceptable document of identity) (last visited Feb. 11, 2014); http://www.mvd.newmexico.gov/apply-for-new-driver-s-license.aspx (to apply for a driver’s license, you must present proof of identity, such as a marriage certificate) (last visited Feb. 11, 2014); http://www.mvd.newmexico.gov/resources-frequently-asked-questions.aspx?1f7fcb5548ee4e17a47ff4e27e571a01blogPostId=e2f7bf9262214ff6858912b34b00ff1d#/BlogContent (to change name on driver’s license, an applicant must present an original or certified copy of a marriage license, court order, divorce decree, or birth certificate) (last visited Feb. 11, 2014); Los Alamos County, New Mexico website at http://www.losalamosnm.us/clerk/Pages/MarriageLicenseFAQs.aspx (under marriage license frequently asked questions and “How do I change my last name?”, the county website explains that after the marriage ceremony is performed and certificate recorded, a certified copy of the marriage certificate will be issued and can be taken to any State Motor Vehicle Department for a driver’s license with the new last name and to the Social Security office for a new last name) (last visited Feb. 11, 2014).
In addition, New Mexico administrative regulations specify that a marriage certificate is sufficient proof to change an individual’s legal name on his or her medical license, and other professional and occupational licenses. See e.g., N.M. Admin. Code § 16.10.1.8 (marriage certificate is sufficient proof to change name on medical board record or license); N.M. Admin. Code § 16.7.1.8(C)(1) (marriage certificate is sufficient proof to change name on massage therapist license); N.M. Admin. Code § 16.12.2.10(S) (marriage certificate sufficient proof to change name on nurse license); N.M. Admin. Code § 16.13.15.9 (marriage certificate sufficient proof for a name change to a nursing home administrator license). Therefore, New Mexico will accept a marriage certificate for purposes of a legal name change.
Accordingly, as of the New Mexico Supreme Court’s G~ 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 for purposes of a legal name change.
3) Any change to the status of a prior or new civil union or domestic partnership entered into in the same State.
This question is inapplicable to New Mexico, which does not have a law authorizing or recognizing a civil union or domestic partnership for same-sex couples. See Hartford Ins. Co. v. Cline, 139 P.3d 176, 182 (N.M. 2006) (noting there had been several failed attempts in recent legislative sessions to pass legislation intended to extend the rights, protections and benefits enjoyed by spouses in a marriage to domestic partners, such as the “Domestic Partner Rights and Responsibility Act” and the “Domestic Partner Benefits” bills, which were both introduced in the 2005 legislative session). The New Mexico Supreme Court’s G~ decision addresses only the legality of same-sex marriages performed in New Mexico under the New Mexico marriage statutes.
4) Whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage.
This question is inapplicable to New Mexico, which does not have a law authorizing or recognizing a civil union or domestic partnership for same-sex couples. The New Mexico Supreme Court’s G~ decision addresses only the legality of same-sex marriages performed in New Mexico under the New Mexico marriage statutes. To the extent this question concerns a prior out-of-state civil union or domestic partnership, we note that the New Mexico marriage statutes provide only that New Mexico will recognize valid out-of-state marriages. See N.M. Stat. Ann. § 40-1-4; see also N.M. Atty. Gen. Op. No. 11-01, 2011 WL 111243, at *3 (N.M. A.G. Jan. 4, 2011) (New Mexico law recognizes as valid all out-of-state marriages that are valid in the state of origin, including valid out-of-state same-sex marriages); Dion v. Rieser, 285 P.3d 678 (N.M. App. 2012) (de facto spouse under Australia’s Property Act was not the equivalent of a marriage under Australian law, and therefore, not marital under New Mexico law). There is no such similar law with regard to civil unions or domestic partnerships.
PROPOSED LANGUAGE FOR POMS RM 10212.035
We propose adding new language to POMS RM 10212.035(A) regarding New Mexico’s recognition of same-sex marriage for purposes of name change:
“Beginning 12/19/13, the date of the New Mexico Supreme Court’s decision in Rose Griego, et al. v. Maggie Toulouse Oliver, et al., and State of New Mexico, ex rel., New Mexico Association of Counties, et al. v. Honorable Alan M. Malott, 316 P.3d 865 (N.M. Dec. 19, 2013) holding that same-sex marriage is legal in New Mexico, accept marriage documents issued by New Mexico to same-sex couples for marriages that took place in New Mexico on 08/21/13 or later as evidence of a name change. For any New Mexico same-sex marriage documents issued before this date, submit the case for a Regional Chief Counsel (RCC) opinion in accordance with GN 01010.815.” POMS RM 10212.035(A) should also reference this precedent opinion.
Michael McGaughran,
Regional Chief Counsel
By: ____________
Shalyn Timmons
Assistant Regional Counsel
Footnotes:
The New Mexico Supreme Court was not specific with regard to which district court decisions it was affirming; however, it appears that the Court is referring to Judge Alan’s September 3, 2013, district court decision that led to the intervenors’ request that the New Mexico Supreme Court issue a writ of superintending control (Judge Alan’s declaratory judgment, writ of mandamus, and injunction requiring county clerks in two counties to issue same-sex marriage licenses), as well as to other district court decisions that issued writs and orders requiring county clerks in other counties to issue same-sex marriage licenses that the Court mentions in its decision. See G~, 316 F.3d at 872-873 (identifying these lower district court cases as Griego v. Oliver, No. D-202-CV-2013-02757, 2nd Judicial Dist. Ct. Sept. 3, 2013; State ex rel. Stark v. Martinez, No. D-820-cv-2013-295, 8th Judicial Dist. Ct. Aug, 27, 2013; State ex rel. Newton v. Stover, No. D-132-cv-2013-00094, 1st Judicial Dist, Ct., Aug. 29, 2013; Katz v. Zamarripa, No. D-608-cv-2013-00235, 6th Judicial Dist. Ct. Sept. 5, 2013).
The Dona Ana County clerk voluntarily (without a court order requiring him to do so) issued the first marriage licenses to same-sex couples on August 21, 2013. See G~, 316 P.3d at 872; see also http://www.donaanacounty.org/content/ellins-do%C3%B1-ana-county-issuing-same-gender-marriage-licenses (last visited Jan. 9, 2014).
We note the distinction between the marriage license and marriage certificate under New Mexico law. The license authorizes the parties to marry, and the certificate is the document establishing that the required solemnized marriage ceremony occurred. See N.M. Stat. Ann. § 40-1-10 (couples wishing to marry “shall first obtain a license from a county clerk of this state and following a ceremony conducted in this state file the license for recording in the county issuing the license”), § 40-1-14 (“persons authorized to solemnize marriage shall require the parties contemplating marriage to produce a license signed and sealed by the county clerk issuing the license.”), § 40-1-15 (the person performing the ceremony has “the duty . . . to certify the marriage to the county clerk within ninety days from the date of the marriage ceremony,” and the county clerk shall file the certificate of marriage and record it as a permanent record in the county records). The statutes provide a uniform form of application, marriage license, and marriage certificate for county clerks to use. See N.M. Stat. Ann. §§ 40-1-17, 40-1-18. For a marriage to be valid under New Mexico law it must be formally entered into by contract and an appropriate official must solemnize the marriage. See Rivera v. Rivera, 243 P.3d 1148, 1150-1153 (N.M. App. 2010) (examining whether a New Mexico marriage was valid given that the parties’ obtained a Texas, not New Mexico, marriage license, refusing to find the marriage void based only upon the lack of a New Mexico license, but also noting that New Mexico law continues to clearly require marriage licenses as evidence that the marriage fully complies with the law); see also N.M. Stat. Ann. §§ 40-1-1 (marriage is a civil contract), 40-1-2 (an authorized person must solemnize a marriage; solemnize means to join in marriage before witnesses by means of a ceremony).