TN 30 (11-14)

A. PR 15-020 Oklahoma State Law – Marriage Certificate for Same-Sex Couple as Legal Name Change Document -- REPLY

DATE: November 3, 2014

1. SYLLABUS

Accept marriage documents issued to same-sex couples for marriages that took place on October 06, 2014 or later by jurisdictions (town, county or State) in the State of Oklahoma as evidence of a name change.

2. OPINION

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

B. PR 08-042 Oklahoma State Law - Marriage Certificate as Evidence in Support of a Legal Name Change (NH Linda; SSN ~) - REPLY

DATE: December 20, 2007

1. SYLLABUS

SSA can process the name change because SSA looks to Oklahoma state law to determine which documents are needed to support a legal name change on the number holder's Social Security Card and Numident record. Under common law in Oklahoma any adult or emancipated individual may change his/her entire name at will as long as the change is not for an illegal or fraudulent purpose, without legal proceedings. Consistent with the Change of Name Act, the Oklahoma Marriage and Family statutes require a party requesting a Marriage Certificate to provide the full name by which the party will be known after the marriage. Okla. Stat. Ann. tit. 43, §§ 5, 6, 8 (2007). The Oklahoma Marriage and Family statutes state that the name the party will be known by after the marriage will become the party's full legal name upon the filing of the Marriage Certificate with the court. The same documentation that is acceptable under Oklahoma law to effect a legal name change due to marriage is also acceptable to SSA for the same purpose and to issue a replacement card bearing the new name of the applicant. In this case the presentation of the applicant's current driver's license with the applicant's current name and the applicant's marriage license with the current and future name provides documentation that is acceptable for SSA to change the applicant's entire name on the Numident and issue the applicant a replacement Social Security Card.

2. OPINION

This memorandum responds to your request to provide an opinion on the evidence a person must submit to the Social Security Administration (Agency) to support a legal name change on the number holder's Social Security Number card and Numident record (Social Security Card). Specifically, you requested an opinion on whether the Agency would accept an Oklahoma marriage license and certificate (Marriage Certificate) as a legal document to support the number holder's request to change the first name and surname on her Social Security Card. In our opinion, the Marriage Certificate is acceptable as a legal document in support of a legal name change due to marriage provided that the person requesting the name change submits an additional form of primary identification acceptable under Oklahoma statutes.

On June 15, 2007, Linda (Michelle) married Jon in Guthrie, Oklahoma. On July 11, 2007, Michelle filed an Application for a Social Security Card, Form SS-5, requesting a name change on her Social Security Card. In her application, Michelle requested that the Agency change the name on her Social Security Card from Linda to Michelle. To support her name change request, Michelle presented a Marriage Certificate that shows her name would change from Linda to Michelle after the marriage. Michelle also presented a Louisiana driver's license under the name Linda.

The Intelligence Reform and Terrorism Prevention Act requires the Agency 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." See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7213(a)(1)(B). An applicant for a name change must submit documentary evidence that the Agency regards as convincing evidence of identity. See 20 C.F.R. § 422.107 (2007). 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 new name of the applicant. 20 C.F.R. § 422.110(a). When considering the sufficiency of submitted evidence, the Agency looks to state law to determine which documents the Agency needs to support a legal name change and to issue an original or a replacement Social Security Card.

In Oklahoma, the Change of Name Act 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 (2007). Consistent with the Change of Name Act, the Oklahoma Marriage and Family statutes require a party requesting a Marriage Certificate to provide the full name by which the party will be known after the marriage. Okla. Stat. Ann. tit. 43, §§ 5, 6, 8 (2007).

The Oklahoma Marriage and Family statutes state that the name the party will be known by after the marriage will become the party's full legal name upon the filing of the Marriage Certificate with the court. Id.

According to Oklahoma common law, a married woman acquired her husband's surname as a matter of custom. Sneed v. Sneed, 585 P.2d 1363, 1365 (Okla. 1978). Oklahoma statutory and case law are silent on whether a person can change his or her first name as the result of a marriage. Even so, under common law, any adult or emancipated person may change his or her name at will, without any legal proceedings , provided the person does not change his or her name for an illegal or fraudulent purpose. Sneed, 585 P.2d at 1365. The Change of Name Act codifies the common law condition that a person's name cannot be changed for an illegal or fraudulent purpose. Id. In our opinion, absent any evidence of an illegal or fraudulent purpose, the Oklahoma Marriage and Family statutes do not preclude a person from changing his or her first name, in addition to his or her surname, at the time of marriage.

To obtain an initial Oklahoma driver's license, the Oklahoma Department of Public Safety requires every applicant to furnish both primary and secondary documentary proof of identity, full legal name, and birth date. See Okla.

Admin. Code § 595:10-1-3(b) (2007). Consistent with the Oklahoma Marriage and Family statutes, the Oklahoma Administrative Code provides that a person who requests a name change on his or her driver's license due to marriage must request the same name as he or she signed on the Marriage Certificate. Id. § 595:10-1-35(c)(2). The Oklahoma Department of Public Safety requires the person requesting the name change to submit the Marriage Certificate as secondary identification in conjunction with an additional document acceptable as primary identification under the state Administrative Code. Id. § 595:10-1-35(c)(2), (c)(3). An out-of-state driver's license is acceptable as primary proof of identification. Id. § 595:10-1-3 (b)(1).

To support her name change request, Michelle presented to the Agency a Marriage Certificate, which the Court Clerk of Cleveland County, Oklahoma recorded on June 19, 2007. The Marriage Certificate shows Michelle's name would change from Linda to Michelle after the marriage. In addition to the Marriage Certificate, Michelle also presented a Louisiana driver's license bearing the name Linda. In summary, because the Agency looks to state law to determine the sufficiency of evidence submitted to support a legal name change, documentation that is acceptable under Oklahoma law to effect a legal name change due to marriage is also acceptable to the Agency for the same purpose. Michelle submitted her Oklahoma Marriage Certificate and her Louisiana driver's license as evidence of a legal name change for both her first name and her surname when she applied for a replacement Social Security Card. Together, these two documents provide sufficient evidence to effect a legal name change under Oklahoma law absent any evidence of an illegal or fraudulent purpose. There is no evidence of such a purpose in this matter. Thus, the Agency may accept the same two documents as sufficient evidence for a legal name change and to issue a replacement card bearing the new name of the applicant.

Tina M. Waddell
Chief Counsel, Region
By__________
Ruben Montemayor
Assistant Regional Counsel

Footnotes:

[1]

The Tenth Circuit also found that Okla. Stat. tit. 43, § 3(a), which provides that any unmarried person at least 18 years of age is capable of entering into marriage “with a person of the opposite sex,” was not enforceable independent of Okla. Const. art. 2, § 35(A). Bishop, 760 F.3d at 1078-1079 (finding that Okla. Stat. tit. 43, § 3(a) “has no effect beyond the restrictions on same-sex marriage imposed” by the Oklahoma Constitution).

[2]

The Tenth Circuit did not reach the merits as to the constitutionality of the non-recognition provision of Okla. Const. art. 2, § 35(B), which states that “[a] marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.” Bishop, 760 F.3d at 1082-1096. The Tenth Circuit affirmed the district court’s dismissal of the challenge to the non-recognition provision of Okla. Const. art. 2, § 35(B), finding that the plaintiffs had forfeited the argument that Part B is inseverable from Part A of Okla. Const. art. 2, § 35. Id. at 1096. The Tenth Circuit stated that “[a]lthough it would not be appropriate to definitively opine on the matter, it is fair to surmise that the court’s decision in Kitchen casts serious doubt on the continuing vitality of Part B” of Okla. Const. art. 2, § 35. Id., citing Kitchen, 755 F.3d at 1199 (“A state may not … refuse to recognize [a] marriage … based solely upon the sex of the persons in the marriage union.”). Thus, the Court did not explicitly hold whether Oklahoma must recognize same-sex marriages from other states. See Okla. Const. art. 2, § 35(B); Okla. Stat. Ann. tit. 43, § 3.1. However, for purposes of the present discussion, Oklahoma’s recognition of out-of-state same-sex marriages is not relevant, so long as the marriage certificate was legally issued. See Program Operations Manual System (POMS) Records Maintenance (RM) 10212.035 (“For SSA purposes, applicant’s State of residence is not a factor in determining whether the same-sex marriage document is acceptable evidence for a name change.”)

[3]

We note the distinction between the marriage license and marriage certificate under Oklahoma law. The license authorizes the parties to marry, and the certificate is the document establishing that the required solemnized marriage ceremony occurred. See Okla. Stat. Ann. tit. 43, § 4 (no person shall enter into marriage, nor shall any person solemnize the ceremony of a marriage without a license issued by a judge or clerk of the district court authorizing the marriage between the parties named in the license); Id. at § 5(B) (upon application for a license and payment of fees, the court clerk shall issue the marriage license authorizing the marriage and a marriage certificate, which shall be incorporated as one document; the marriage certificate shall be completed immediately following the marriage, and the marriage license and certificate shall be returned to the court clerk); Id. at § 6 (content requirements of the license and marriage certificates); Id. at § 7 (requisite solemnization of marriages); Id. at § 8 (endorsement of the license and certificate following the ceremony, and return of the marriage license and completed marriage certificate to the judge or court clerk who issued the license and certificate); Id. at § 9 (the judge or court clerk records the completed marriage application, license, and certificate).

[4]

Examples of primary documentary proof of identification for a U.S. citizen for an initial, renewal, or replacement license include a certified birth certificate; a U.S. passport; for a U.S. citizen who is born in another country, a certification issued by the U.S. Department of State; and for a naturalized citizen of the U.S., a certificate of naturalization issued by the U.S. Citizenship and Immigration Service. Okla. Admin. Code § 595:10-1-3(b). Examples of secondary proof of identification, which shall contain the name of the applicant, include any primary proof of identification, which is not used as the primary identification document; Social Security card; and marriage certificate. Id.

[5]

Oklahoma recognizes common-law marriage and provides that clear and convincing evidence is required to establish common-law marriage. See Standefer v. Standefer, 26 P.3d 104, 107 (Okla. 2001) (a common-law marriage is formed when “the minds of the parties meet in consent at the same time;” some evidence of this consent to enter into a common-law marriage include cohabitation, actions consistent with the relationship of spouses, recognition by the community of the marital relationship, and declarations by the parties); Mueggenborg v. Walling, 836 P.2d 112, 113-114 (Okla. 1991) (a common-law marriage requires clear and convincing evidence of competent parties, mutual agreement to marry exclusive of all others, and consummating the marriage by cohabitation and open assumption of marital duties; the court noted inconsistencies in cases with regard to the requirements of the last element); Reaves v. Reaves, 82 P. 490, 496 (Okla. Terr. 1905) (a common-law marriage consummated in accordance with the rules of common law is valid).

[6]

The same day that the Tenth Circuit lifted its stay, on October 6, 2014, same-sex couples, including the plaintiffs in Bishop, obtained same-sex marriage licenses and entered into marriages. See http://www.tulsaworld.com/news/usworld/first-same-sex-marriage-license-issued-in-tulsa-county/article_6ff735f2-6aa3-560a-9ca8-e5c3604d6a77.html (last visited Oct. 9, 2014).