TN 28 (06-14)

PR 14-115 Oregon State Law – Marriage Certificate for Same-Sex Couples as Legal Name Change Document

DATE: June 11, 2014

1. SYLLABUS

Accept marriage documents issued to same-sex couples for marriages that took place on 05/19/2014 or later by jurisdictions (town, county or State) in Oregon as evidence of a name change.

2. OPINION

BACKGROUND

On May 19, 2014, the Federal District Court for the District of Oregon, issued an opinion and order in Geiger v. Kitzhaber, -- F.Supp.2d --, 2014 WL 2054264 (D.Or., May 19, 2014), holding that Article 15, section 5A, of the Oregon Constitution, which defined marriage as a union composed of “one man and one woman,” violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and was therefore void and unenforceable. Id. at *16. The Court further held that Oregon’s marriage laws were unenforceable to the extent that they would prohibit a person from marrying another person of the same gender, or would deny same-gender couples the right to marry with full and equal recognition, attendant rights, benefits, privileges, obligations, responsibilities, and immunities of marriage, where the couple would be otherwise qualified to marry under Oregon law. Id. The Order was effective immediately upon filing. Id.

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:

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

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

(3) Any change to the status of a prior or new civil union or domestic partnership entered into in the same State; and

(4) Whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage.

POMS RM 10212.035(D).

DISCUSSION

(1) The date the State began issuing marriage licenses and certificates to same-sex couples.

May 19, 2014. The Court permanently enjoined Oregon officials from enforcing Article 15, section 5A, of the Oregon Constitution along with enforcing or applying those statutes—or any other state or local law, rule, regulation, or ordinance—as a basis to deny marriage to same-gender couples otherwise qualified to marry in Oregon. Geiger, 2014 WL 2054264, at *16. The Order was effective immediately upon filing, which occurred on May 19, 2014. Id. That same day the State began issuing marriage licenses to same-sex couples. See http://public.health.oregon.gov/BirthDeathCertificates/RegisterVitalRecords/Pages/marriagefaq.aspx; see also https://multco.us/multnomah-county-home/news/multnomah-county-begins-issuing-marriage-licenses-same-sex-couples.

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

The State should permit parties to same-sex marriages to change their names based on the marriage. Pursuant to the district court’s opinion and order, there must be no legal distinction between same-sex married couples and opposite-sex married couples with respect to marriage under Oregon law. The Court permanently enjoined Oregon officials from denying married same-gender couples any of the rights, benefits, privileges, obligations, responsibilities, and immunities that accompany marriage in Oregon. Geiger, 2014 WL 2054264, at *16.

Oregon recognizes marriage as a legal basis for a name change. Or. Rev. Stat. § 106.220 (2013). Accordingly, as of the district court’s opinion and order, same-sex married couples should be able to change their names based upon their marriage.

It should be noted that Multnomah County, Oregon, allowed same-sex marriages in 2004 and those marriages were voided by the Oregon State Supreme Court. Li v. State, 110 P.3d 91 (Or. 2005). The Geiger opinion and order is not retroactive. Geiger, 2014 WL 2054264, at *16. Those marriages remain voided, and any couple would need to marry after May 19, 2014, to be considered legally married.

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

The Geiger opinion and order only addresses same-sex marriages. It does not discuss the status of domestic partnerships, which are established under a separate law. Or. Rev. Stat. §§ 106.300 et seq. Accordingly, the state of Oregon continues to recognize domestic partnerships.

(4) Whether a civil union or domestic partnership entered prior to the Geiger decision must be dissolved before entering a same-sex marriage.

As of the date of this legal opinion, the state of Oregon is advising its citizens that a dissolution of a domestic partnership will not be required if the same-sex partners want to be married. See http://public.health.oregon.gov/BirthDeathCertificates/RegisterVitalRecords/Pages/marriagefaq.aspx. However, dissolution of the domestic partnership must occur before either party could marry someone else. Id.

PROPOSED LANGUAGE FOR POMS RM 10212.035

We propose adding new language to POMS RM 10212.035(A) regarding Oregon’s recognition of same-sex marriage for purposes of name change:

Beginning 05/19/14, the date of the District Court for the District of Oregon’s opinion and order in Geiger v. Kitzhaber, -- F.Supp.2d --, 2014 WL 2054264 (D.Or., May 19, 2014), you should accept marriage documents issued by Oregon to same-sex couples for marriages that took place in Oregon on 05/19/14 or later as evidence of a name change.

POMS RM 10212.035(A) should also reference this precedent opinion.