PR: Title II Regional Chief Counsel Precedents
TN 19 (01-14)
A. PR 14-018 Name Change Arising from a Same-Sex Marriage in Hawaii
DATE: November 22, 2013
1. SYLLABUS
Accept marriage documents issued to same-sex couples for marriages that took place December 2, 2013 or later by jurisdictions (town, county or State) in Hawaii as evidence of a name change. The Hawaii Marriage Equality Act in effect December 2, 2013 permits same-sex couples to marry in Hawaii beginning December 2, 2013 and permits parties to a same-sex marriage to change their names based upon the marriage in the same manner as any other person changing their name by marriage.
2. OPINION
SUMMARY
On November 13, 2013, 2013, Hawaii enacted the Hawaii Marriage Equality Act of 2013, 1 legalizing marriage between same-sex couples. Accordingly, the Social Security Administration (SSA) should accept Hawaii marriage certificates issued to same-sex couples on or after December 2, 2013 as valid evidence of a name change.
BACKGROUND
Beginning January 1, 2012, Hawaii permitted same-sex couples to enter civil unions, providing them the same “rights, benefits, protections, and responsibilities” as married couples. Haw. Rev. Stat. § 572B-9. On June 26, 2013, the United States Supreme Court ruled that the Defense of Marriage Act, prohibiting the Federal Government from recognizing same-sex marriage, was unconstitutional. United States v. Windsor, 133 S. Ct. 2675 (2013). In response, the Hawaii legislature enacted the Hawaii Marriage Equality Act of 2013 (Act), in order to afford same-sex couples all of the rights and benefits associated with marriage under federal law. See Act, Section 1 (referencing Windsor and recognizing that while Hawaii already provides for same-sex civil unions, “these civil unions are not recognized by federal law and will not be treated equally to marriage under federal law”). The purpose of the Act is therefore to ensure that same-sex couples are able to take full advantage of the rights, benefits, protections and responsibilities granted to married opposite-sex couples. Id.
On November 13, 2013, Governor Neil signed the Act into law. The provisions of the Act are effective beginning December 2, 2013.
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.
Additionally, we address the date Hawaii will begin recognizing same-sex marriages entered outside the State.
DISCUSSION
The date the State will begin issuing marriage licenses and certificates to same-sex couples.
The Act will allow same-sex couples to obtain marriage licenses beginning December 2, 2013, as confirmed by the information published by the Hawaii Department of Health Electronic Marriage and Civil Union Registration System. See https://emrs.ehawaii.gov/emrs/public/home.html (“SAME-SEX COUPLES CANNOT APPLY FOR A MARRIAGE LICENSE UNTIL DECEMBER 2, 2013.”) (last visited Nov. 22, 2013) (italics and capitalization in original).
Whether the State permits parties to the same-sex marriage to change their names based on the marriage?
Yes. Effective December 2, 2013, the Act provides that no legal distinction will exist between same-sex married couples and opposite-sex married couples with respect to marriage under the laws of the State. See Act, Section 1. Parties to a marriage may elect to change their middle or last names to adopt the last name of the other party. Haw. Rev. Stat. § 574-1. The name-change provisions do not distinguish between same-sex and opposite sex marriages. Id. 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?
No. Two individuals that are civil union partners or reciprocal beneficiaries may marry each other without first terminating their civil union or reciprocal beneficiary relationship, so long as they otherwise meet the state’s marriage requirements. Haw. Rev. Stat. § 572A (eff. Dec. 2, 2013). Solemnization of the couple’s marriage shall automatically terminate the couple’s civil union or reciprocal beneficiary relationship. Id.
Partners in an existing civil union may apply to have their civil union converted into a marriage in an administrative proceeding without personal appearance or solemnization. Haw. Rev. Stat. § 572-E (eff. Dec. 2, 2013). The date of these marriages will be the date the Department of Health accepts the request to convert the civil union to marriage. Id. § 572-E(b). These marriages will be deemed solemnized for all purposes. Id. § 572-E(e).
Any change to the status of a prior or new civil union or domestic partnership entered into in the same State.
None. Civil unions continue to exist as a form of legal union between same-sex or opposite sex couples. 2 See Haw. Rev. Stat. § 572-A; § 572B-2. Likewise, reciprocal beneficiary relationships continue as a form of legal union between two individuals that are legally prohibited from marrying under Hawaii law. See Haw. Rev. Stat. § 572C-2. Any benefits, rights, protections and responsibilities created by the civil union or reciprocal beneficiary relationship continue from the date of the civil union, even if the couple marries. Haw. Rev. Stat. § 572-A.
The date out-of-state same sex marriages are accepted in Hawaii.
Beginning December 2, 2013, Hawaii recognizes as valid marriages entered legally between two individuals outside the state, regardless of their gender. Haw. Rev. Stat. § 572-3.
PROPOSED LANGUAGE FOR POMS RM 10212.035
We propose adding new language to POMS RM 10212.035(A) regarding Hawaii’s recognition of same-sex marriage for purposes of name change:
“Accept marriage documents issued to same-sex couples for marriages that took place on 12/2/2013 or later by Hawaii as evidence of a name change.” RM 10212.035(A) should also reference this precedent opinion.
Footnotes:
See http://governor.hawaii.gov/wp-content/uploads/2013/09/Marriage_Equity_Bill_AG_9_9_13.pdf (last visited Nov. 22, 2013).
Because civil unions continue to exist, the guidance provided in POMS PR 02705.014 regarding name change based on civil unions remains valid.