PR: Title II Regional Chief Counsel Precedents
TN 29 (06-14)
A. PR 14–123 Pennsylvania Same-Sex Marriages – Information
DATE: June 13, 2014
1. SYLLABUS
Accept marriage documents issued to same-sex couples for marriages that took place on 05/20/2014 or later by jurisdictions (town, county or State) in Pennsylvania as evidence of a name change.
2. OPINION
Brief Summary
On May 20, 2014, the Middle District of Pennsylvania issued an opinion in Whitewood v. Wolf, No. 1:13-1861, ___ F. Supp.2d ___, 2014 WL 2058105 (M.D.Pa. May 20, 2014), holding that Pennsylvania’s marriage laws prohibiting same-sex marriage and prohibiting recognizing
same-sex marriages validly entered into in other jurisdictions were unconstitutional. Accordingly, as of May 20, 2014, the Social Security Administration should accept Pennsylvania’s marriage license certificates as valid evidence of a name change.
Background
On May 20, 2014, a federal district court issued an opinion in the case of Whitewood v. Wolf, No. 1:13-1861, ___ F. Supp.2d ___, 2014 WL 2058105 (M.D.Pa. May 20, 2014) holding that Pennsylvania’s marriage laws, 23 Pa. Cons. Stat. Ann. §§ 1102 1 and 1704 2 violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution. Accordingly, the court entered an order permanently enjoining the enforcement of these laws stating “By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.” W~, 2014 WL 2058105 at *16.
On May 21, 2014, the Governor of Pennsylvania announced that that he would not appeal the district court’s ruling striking down Pennsylvania’s same-sex marriage ban. See Greg Bothelho, PA Governor Won’t Challenge Overturning of Same-Sex Marriage Ban, (May 21, 2014, 6:33 AM), http://www.cnn.com/2014/05/21/us/pennsylvania-same-sex-marriage/. Previously, in July 2013, the Pennsylvania Attorney General, Kathleen, refused to defend the governor and the Secretary of Health in the W~ matter on ethical grounds because she believed that the Pennsylvania Defense of Marriage Act was unconstitutional. See Pennsylvania Attorney General, http://www.attorneygeneral.gov/press.aspx?id=7771 (last visited June 10, 2014). Accordingly, we do not anticipate that any party with standing will appeal the federal court ruling.
Questions Presented
We are providing this advice in accordance with the Program Operations Manual System (POMS) RM 10212.035, Evidence of a Name Change based on a U.S. Same-Sex Marriage. Section D of RM 10212.035 provides that when a State legalizes same-sex marriages, an opinion from the Regional Chief Counsel should be obtained regarding the following information:
(1) the date the State will begin issuing marriage licenses and certificates to same-sex couples;
(2) whether the State permits parties to the same-sex marriage to change their names based on the marriage;
(3) whether a prior 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 Pennsylvania will begin issuing marriage licenses and certificates to same-sex couples. 3
In the W~ decision, the Middle District of Pennsylvania court issued an order permanently enjoining the enforcement of the Pennsylvania statutes barring same-sex marriage and the recognition of same-sex marriages entered into in other jurisdictions. In the May 20, 2014 decision, the court stated, “By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.” W~, 2014 WL 2058105 at *16. As discussed there was no stay issued in this case and the Governor and Attorney General have indicated that they will not appeal this decision. Therefore, as of May 20, 2014, Pennsylvania has issued marriage licenses to same-sex couples.
Pennsylvania has a three-day waiting period after applying for a marriage license before the license can be issued. 23 Pa. Cons. Stat. Ann. § 1303(a) (West 2014). However, the waiting period can be waived and, in fact, has been waived to permit same-sex couples to marry sooner. 23 Pa. Cons. Stat. Ann. § 1303(b)(1) (West 2014) (stating “the court may authorize a license to be issued at any time after the making of the application… in cases of emergency or extraordinary circumstances); see also Kaitlynn, Allegheny County Marries Its First Same-Sex Couple Amid Smiles, Tears (May 21, 2014 11:26 PM) http://www.post-gazette.com/local/city/2014/05/21/Same-sex-couples/stories/201405210151 (stating that a waiver of the waiting period was issued for a same-sex couple in Allegheny County). Therefore, in accordance with the W~ decision, marriage licenses and certificates may be issued as of May 20, 2014. 4
2) Whether Pennsylvania permits parties to the same-sex marriage to change their names based on the marriage.
Yes. Pursuant to the W~ decision, no legal distinction exists between same-sex married couples and opposite-sex married couples with respect to marriage under Pennsylvania laws (holding that the classification imposed by Pennsylvania’s marriage laws based upon sexual orientation is not substantially related to an important governmental interest and, therefore, unconstitutional). W~, 2014 WL 2058105 at *15. Accordingly, as of May 20, 2014, the date of the W~ decision, same-sex married couples may change their names based upon their marriage to the same extent as opposite-sex married couples.
Although Pennsylvania has a civil process for a name change in which a party can petition for a court-ordered name change pursuant to 54 Pa. C.S.A. §701(West 2014), these formal procedures are not required for a name change following a marriage. Pennsylvania statutes do not specifically authorize a name change following marriage by using the married name and producing a marriage license when required. Nevertheless, in practice, Pennsylvania historically allows the bride to change her name officially by signing her new married name on her marriage certificate. Michael, The Right of Men to Change Their Names Upon Marriage, 5 U. Pa. J. Const. L. 186, n. 10 (2002) citing 23 Pa. C.S.A. § 1501 (West 2014). In addition, we have confirmed this practice with the Pennsylvania Department of Motor Vehicles (DMV) by telephone and through the forms that the DMV requires to be submitted for a name change. See PA Dept. of Transportation, Application for Change of a Non-Commercial Driver’s License (available at http://www.dmv.state.pa.us/pdotforms/dl_forms/dl-80.pdf) (last visited Jun. 10, 2014) (stating that additional documentation is required if a party desires to use a name other than his or her (1) birth name, (2) spouse’s surname, or (3) a name given though a Court Order).
3) Whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage.
Pennsylvania law does not provide for civil unions or domestic partnerships. However, there are several municipalities in Pennsylvania that have enacted ordinances recognizing domestic partnerships. These include, the city of Philadelphia, 5 the city of Pittsburgh, 6 the city of Allentown, 7 the city of Easton,8 the city of Harrisburg, 9 and the borough of State College. 10 These municipalities provide a variety of benefits, typically health care/employee benefits, hospital visitation privileges, and sometimes allow partners to transfer property to the other partner without having to pay city real estate transaction fees.
The termination procedures for these domestic partnerships vary and, in many cases, do not address contingency of legalization of same-sex marriage in Pennsylvania. Only two of the municipalities, Allentown and Easton, provide that if same-sex marriage became legal in Pennsylvania the parties would have 90 days of continued coverage to allow them to marry. The Code of the City of Easton provides that if Pennsylvania recognized same-sex marriages that the ordinance would become null and void after a 90 day period to allow the parties to marry. 11 Although the City of Allentown did not specifically indicate that the domestic partnerships would dissolve automatically after the 90 day period, it is reasonable to assume that the domestic partnerships would dissolve after 90 days of continued coverage and do not need to be dissolved to enter into a same-sex marriage. Although the remainder of the local ordinances do not address the legalization of same-sex marriages, presumably these domestic partnerships recognized by local ordinances would not need to be dissolved prior to entering into a same-sex marriage in the Commonwealth of Pennsylvania.
4) Whether there is any change to the status of a prior or new civil union or domestic partnership entered into in the same State.
As Pennsylvania law does not provide for civil unions or domestic partnerships, this question is inapplicable. However, to the extent that there are domestic partnerships recognized by municipalities, the legalization of same-sex marriage is not addressed in these ordinances other than in Allentown and Easton as explained above. Therefore, it is unclear what, if any, impact the legalization of same-sex marriage in Pennsylvania will have on local laws that do not contain provisions addressing this contingency.
Nora R. Koch
Acting Regional Chief Counsel
By:_____________
Tara A. Czekaj
Assistant Regional Counsel
Footnotes:
23 Pa. Cons. Stat. Ann. § 1102 (West 2014) defines “marriage” as “a civil contract by which one man and one woman take each other for husband and wife.”
23 Pa. Cons. Stat. Ann. § 1704 (West 2014) states, “It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.”
There is distinction between marriage license applications and the marriage license certificates. No person can be joined in marriage in the Commonwealth of Pennsylvania until a marriage license has been obtained. 23 Pa. Cons. Stat. Ann. § 1301(a) (West 2014). A marriage license shall be issued if it appears from properly completed application on behalf of each of the parties to the proposed marriage that there is no legal objection to the marriage. 23 Pa. Cons. Stat. Ann. § 1307 (West 2014). Once a marriage is solemnized, the original marriage certificate shall be signed by the person solemnizing the marriage (or by the parties in the case of marriages performed by the parties themselves) and given to (or retained by) the parties contracting the marriage and a duplicate certificate shall be returned for recording within 10 days to the court, which issued the license. 23 Pa. Cons. Stat. Ann. § 1504 (a), (b) (West 2014); see also 35 Pa. Stat. § 450.601 (West 2014)(stating “On or before the fifteenth day of each calendar month, each clerk of orphans’ court shall transmit to the department the summary of all marriage license applications pertaining to the executed marriage license certificates filed with the clerk during the immediately preceding calendar month.” In other words, a marriage license application must be filed to obtain a marriage license and once the ceremony has been completed a marriage license certificate is issued.
We are aware that beginning in July 2013, the Montgomery County Register of W, D. Bruce H~, previously issued marriage licenses to same-sex couples in violation of the Pennsylvania marriage laws until an injunction was issued by the Pennsylvania Commonwealth Court on September 12, 2013. See Pennsylvania Department of Health v. Hanes (in his capacity as the Clerk of the Orphan’s Court of Montgomery County), No. 379 M.D. 2013 (Pa. Commw. Ct. filed Jul 30, 2013), appeal docketed, No. 77 MAP 2013 (Pa. Oct 1, 2013). Prior to the injunction, H~ issued approximately 174 marriage licenses to same-sex couples. Plaintiffs, and 20 other similarly situated same-sex couples, who were married with Pennsylvania marriage licenses issued by H~, have brought a civil action in Pennsylvania Commonwealth Court seeking declaratory judgment that such a marriage is valid and seeking to have the Pennsylvania marriage laws banning same-sex marriage declared unconstitutional. See Ballen et al v. Wolf, Secretary of Health of Commonwealth of PA, No. 481 MD 2013 (Pa. Commw. Ct. filed Sep 25, 2013). Significantly, on May 24, 2014, the Commonwealth filed a motion to have the B~ case dismissed as moot. See The Unified Judicial System of PA, Cases of Public Interest, Ballen v. Wolf, http://www.pacourts.us/assets/files/setting-3387/file-3712.pdf?cb=0044d1 (last visited Jun 11, 2014). On June 6, 2014, the Petitioners filed a response stating that an issue still remains as to whether Plaintiffs’ marriage licenses and marriages are valid. See The Unified Judicial System of PA, Cases of Public Interest, Ballen v. Wolf, http://www.pacourts.us/assets/files/setting-3387/file-3746.pdf?cb=9b12d6 (last visited Jun. 11, 2014). This petition has not yet been ruled upon, but we expect a ruling in the near future. Accordingly, we recommending holding claims with marriage licenses and certificates issued prior to May 20, 2014, until the issue of the validity of these marriages is resolved by the Pennsylvania courts.
City of Philadelphia Executive Order 2-96, Domestic Partnerships (available at http://www.phila.gov/phils/Docs/Inventor/Textonly/execorders/96-02.htm ) (last visited Jun. 10, 2014).
City of Pittsburgh Code, Chapter 186 (available at http://ecode360.com/13690259#./13690260) (last visited Jun 10, 2014).
City of Allentown, Ordinance No. 14868 (available at http://www.allentownpa.gov/Portals/0/files/Legislative/Ordinances/2010/Ordinance%2014868(1).pdf) (last visited Jun 10, 2014) (stating that in the event same-sex marriage becomes legal in PA, parties have a 90 day period of continued coverage to facilitate marriage).
City of Easton Code, Chapter 114, Article VII (available at http://ecode360.com/15427031) (last visited Jun 10, 2014).
City of Harrisburg Code, Chapter 4-203 (available at http://ecode360.com/13740968) (last visited Jun. 10, 2014); see also City of Harrisburg Code, Chapter 4-205 (available at http://ecode360.com/13740957) (last visited Jun. 10, 2014).
Borough of State College Code, Part G, §§701-705 (available at http://www.keystatepub.com/keystate-pdf/PA/Centre/State%20College%20Borough/Chapter%20X%20Licenses%20and%20Permits.pdf)(last visited Jun 10, 2014).
City of Easton Code, Chapter 114, Article VII, Section 6 (available at http://ecode360.com/15427031) (last visited Jun 10, 2014) (stating “This ordinance shall apply to same-sex domestic partners insofar as state law prohibits such couples from entering into a marriage that is recognized by the laws of Pennsylvania. In the event that the Commonwealth of Pennsylvania recognizes same sex marriage, this ordinance shall become null and void and of no further force and effect. In that event, domestic partners who are covered by this ordinance will have a ninety-day period of continued coverage in order to facilitate a marriage.”).