TN 44 (02-16)

A. PR 16-037 Name Change Arising from a Same-Sex Marriage in Guam

Date: November 24, 2015

1. Syllabus

Accept marriage documents issued to same-sex couples for marriages that took place on June 09, 2015 or later by jurisdictions in the US Territory of Guam as evidence of a name change.

2. Opinion

SUMMARY

On June 8, 2015, in the case of Aguero v. Calvo, the Federal District Court of Guam held that Guam laws banning same-sex marriages violate the Equal Protection Clause of the United States Constitution. The District Court permanently enjoined the Territory of Guam from enforcing any laws preventing otherwise qualified same-sex couples from entering into a marriage effective June 9, 2015. Therefore, the Social Security Administration (SSA) should accept Guam marriage certificates issued to same-sex couples on or after June 9, 2015, as valid evidence of a name change.

BACKGROUND

Historically, Guam laws prohibited same-sex marriage. The Guam Code defined marriage as “the legal union of persons of opposite sex.” 10 Guam Code Ann. § 3207(h).

On October 7, 2014, the Ninth Circuit ruled that Nevada and Idaho laws that prohibit same-sex marriages are invalid because they deny same-sex couples equal protection of the law. Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); stay denied, 135 S.Ct. 345 (U.S. Oct. 10, 2014). The Ninth Circuit has jurisdiction of appeals from the Federal District Court of Guam. See 28 U.S.C. § 1294(4).

On June 8, 2015, following the precedent set by the Ninth Circuit in Latta, the Federal District Court of Guam struck down Guam’s ban on same-sex marriage. See Aguero v. Calvo, No. 15-00009, 2015 WL 3573989, at *2 (D. Guam June 8, 2015). The District Court held that Title 10, Section 3207(h) of the Guam Code is unconstitutional under the Equal Protection Clause of the United States Constitution, and permanently enjoined the enforcement of the statute effective June 9, 2015. Id. On June 9, 2015, Guam began issuing same-sex marriage licenses. G~, Gay couples in Guam start applying for marriage licenses, YorkDispatch (June 8, 2015 6:13 PM EDT), http://www.yorkdispatch.com/ci_28276717/guam-first-us-territory-recognize-same-sex-marriage.

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:

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;

Whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage; and

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

DISCUSSION

The date the State will begin issuing marriage licenses and certificates to same-sex couples.

As detailed above, with the District Court’s ruling in Aguero, same-sex marriage became legal in Guam on June 9, 2015. See Aguero, 2015 WL 3573989, at *2.

Whether the State permits parties to the same-sex marriage to change their names based on the marriage?

Yes. In Guam, parties to a marriage may elect to change their last names to hyphenate their surname with the surname of the spouse, and a woman may elect to retain her surname, so long as the elections are indicated upon the marriage license application. 19 Guam Code Ann. §§ 3108, 3109. Given that women have the statutory right to retain their surname, we assume this means that they could also adopt the surname their spouse. Although not all of Guam’s name change provisions are written in a gender-neutral fashion, the Aguero decision supports the proposition that no legal distinction will exist between same-sex married couples and opposite-sex married couples with respect to laws related to marriage in Guam, such as the choice of name upon marriage. Accordingly, same-sex couples may change their names based on their marriage.

Whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage?

In general, Guam does not provide for civil unions or domestic partnerships. In 2009, several bills were introduced that would recognize same-sex relationships in Guam, but none of these bills passed. Guam, MarriageEqualityUSA, available at http://www.marriageequality.org/region_guam. We have not found any statements by the Guam government or the judiciary indicating that the decision in the Obergefell Supreme Court or other factors require Guam to recognize same-sex or opposite-sex civil unions or domestic partnerships. Because Guam does not recognize such relationships, a couple is not required to dissolve any previously formed civil union or domestic partnership prior to entering into a same-sex marriage.

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

CONCLUSION

None. As discussed above, Guam does not provide for civil unions or domestic partnerships.

B. PR 05-253 Change of Name Due to Marriage in Guam - R~

DATE: September 30, 2005

1. SYLLABUS

Under Guam marriage law, upon entering into a contract of marriage, a woman may elect to retain her maiden name as her surname or to take her husband's surname as a new surname. The wife is the only member of the union who may change the surname. Marriage in Guam is not an event where the husband may take the wife's surname as a new surname. If a husband wishes to change his surname, he must apply to the court for a legal name change.

2. OPINION

QUESTION

You have asked whether, under Guam law, a marriage certificate is acceptable evidence for a name change where the husband, R~ (hereafter, "the husband"), wishes to adopt his wife's surname or a compound form of the name.

ANSWER

The marriage certificate alone in Guam would not be acceptable evidence for purposes of a name change by the husband.

BACKGROUND

The husband visited a field office in Frederick, Maryland and applied for a replacement Social Security Number (SSN) card because he wished to change his last name to his wife's maiden name. As evidence of his new name, he presented a marriage certificate which was issued by the territory of Guam. The marriage certificate indicated that on June XX, 2005, R~ married M~ in Guam. The husband reported that his wife does not plan to change or hyphenate her last name.

ANALYSIS

The matter of changing social security records is governed by the Commissioner's regulations and procedures. Specifically, the Commissioner's regulations limit the bases for changing an individual's records:

(a) How to request a correction. This section applies to all records kept by SSA (as described in §401.5) except for records of earnings. (20 CFR 422.125 describes how to request correction of your earnings record.) You may request that your record be corrected or amended if you believe that the record is not accurate, timely, complete, relevant, or necessary to the administration of a social security program. To amend or correct your record, you should write to the manager identified in the notice of systems of records which is published in the FEDERAL REGISTER (see §401.40(c) on how to locate this information). The staff at any social security office can help you prepare the request. You should submit any available evidence to support your request. Your request should indicate-

(1) The system of records from which the record is retrieved;

(2) The particular record which you want to correct or amend;

(3) Whether you want to add, delete or substitute information in the record; and

(4) Your reasons for believing that your record should be corrected or amended.

20 C.F.R. § 401.65 (2005).

To obtain a replacement Social Security card due to a name change, the applicant must submit one or more documents identifying him or herself by both the old name (as shown on the latest Numident record) and the new name. See Program Operations Manual System (POMS) RM 00203.210. Additionally, the identity document(s) must show information that can be compared to the Numident data (e.g., age, date of birth, parents' names). Id. (citing POMS RM 00203.210F). The applicant may submit either:

One document showing both the old and new names which establishes both identities (e.g., a court order for a name change or a marriage certificate). The document must also show either a photograph of the person or information that can be compared with the Numident data; or

(2) Two documents, one showing the old name and one showing the new name (e.g., a driver's license in the new name and a passport, employee ID Card, or medical records in the old name). Additionally, both documents must show either a photograph of the person or provide information that can be compared with the Numident data.

Id.

The issue of name changing is governed by state law. In the territory of Guam, the law does not appear to limit what name an individual can adopt:

All application[s] for change of names must be made to the Superior Court, by petition, signed by the person whose name is proposed to be changed and if such person is under eighteen (18) years of age, by one of the parents, if living, or if both be dead, then by the guardian; and if there be no guardian, then by some near relative or friend.

The petition must specify the place of birth and residence of such person, his or her present name, cedula, the name proposed, and the reason for such change of name, and must, if the father of such person be not living, name, as far as known to the petitioner, the near relatives of such person, and their place of residence.

7 GUAM CODE ANN. § 36102. We could identify no Guam case law on this issue.

Marriage, however, is a different issue. The Commissioner's procedures provide that the laws of the state where the couple was married would determine whether a name change due to marriage is permissible. RM 00203.210B.5. Whether a marriage certificate would be acceptable evidence for a name change depends upon State law. POMS RM 00203.210; POMS RM DAL00203.210. State law may allow the wife to adopt the husband's last name, the husband to adopt the wife's last name, or both to change to a new name. POMS RM DAL 00203.210. State law may also prohibit any or all changes. Id. Thus, a marriage certificate is acceptable evidence for a name change where state law allows such a change.

Under Guam marriage law, upon entering into a contract of marriage, a woman may elect to retain her maiden name as her surname. 19 GUAM CODE ANN. § 3108 (2005). To make this election, the wife need only indicate on the marriage license application her intention to retain her maiden name. Id. Moreover, "[u]pon marriage, the wife is the sole member of the contracted union or subsequent family who may elect to use her maiden name as a surname." 19 GUAM CODE ANN. § 3109. Therefore, the husband is not allowed to elect to use his wife's maiden name as a surname. Inasmuch as Guam does not allow such a change, it does not appear that a marriage certificate alone in Guam would be sufficient documentation for a name change on the husband's Numident. Instead, he would need to file a petition with the Superior Court of Guam for a change of name. 7 GUAM CODE ANN. §§ 36101-36105. If the name change is granted by the court, the husband will also need to file a certified copy of the court decree with the Office of Vital Statistics, Department of Public Health and Social Services. 7 GUAM CODE ANN. § 36105.

CONCLUSION

The marriage certificate alone in Guam would not be acceptable evidence for purposes of a name change by the husband.