TN 36 (03-15)

A. PR 15–094 Name Change Arising from a Same-Sex Marriage in Nevada

DATE: December 22, 2014

1. SYLLABUS

Accept marriage documents issued to same-sex couples for marriages that took place on October 09, 2014 or later by jurisdictions (town, county or State) in the State of Nevada as evidence of a name change.

2. OPINION

SUMMARY

On October 7, 2014, the Ninth Circuit held that Nevada laws banning same-sex marriages violate the United States Constitution. On October 9, 2014, a Federal District Court for the District of Nevada enjoined the State of Nevada from enforcing any laws preventing otherwise qualified same-sex couples from entering into a marriage. That same day, Nevada counties began issuing marriage licenses to same-sex couples. Therefore, the Social Security Administration (SSA) should accept Nevada marriage certificates issued to same-sex couples on or after October 9, 2014, as valid evidence of a name change.

BACKGROUND

Historically, Nevada laws prohibited same-sex marriage. Article 1, Section 21, of the Nevada Constitution provided only a marriage between “a male and a female” is valid or recognized as a marriage. Nev. Const. Art. I, § 21; see also Nev. Rev. Stat. § 122.020 (defining marriage as between a male and female person).

However, on October 7, 2014, the United States Court of Appeals for the Ninth Circuit ruled invalid the laws of Nevada and Idaho that prohibited same-sex marriages because those laws denied same-sex couples equal protection of the law under the Fourteenth Amendment. Latta v. Otter, 771 F.3d 456, 2014 WL 4977682 at *1 (9th Cir. 2014); stay denied, 135 S.Ct. 345 (U.S. Oct. 10, 2014) (denying application for stay of mandate pending petition for certiorari). The Court reversed the District Court’s Judgment in Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. Nov. 26, 2012), and remanded the case back to the District Court “for the prompt issuance of an injunction permanently enjoining the state, its political subdivisions, and its officers, employees, and agents, from enforcing any constitutional provision, statute, regulation or policy preventing otherwise qualified same-sex couples from marrying, or denying recognition to marriages celebrated in other jurisdictions which, if the spouses were not of the same sex, would be valid under the laws of the state.” 2014 WL 4977682 at *11. The Court issued its mandate the same date, so that its judgment would take effect on October 7, 2014.

On the same day, Nevada Attorney General Catherine Cortez Masto and Nevada Governor Sandoval issued a joint statement saying that the State will not take further action on the Ninth Circuit’s decision to strike down Nevada’s ban on same-sex marriage. Statements From the Offices of Governor and Attorney General After Receiving the Mandate of the Ninth Circuit Court of Appeals, press release from the Office of the State of Nevada Attorney General (Oct. 7, 2014), available at http://ag.nv.gov/News/PR/2014/Miscellaneous/Statements_from_the_Offices_of_Governor_and_Attorney_General_after_Receiving_the_Mandate_of_the_Ninth_Circuit_Court_of_Appeals/.

On October 9, 2014, the Federal District Court for the District of Nevada permanently enjoined the State of Nevada from enforcing any law that prevent same-sex couples from marrying or denying recognition to otherwise valid same-sex marriages celebrated in other jurisdictions.¹ That same day, Nevada counties began issuing same-sex marriage licenses. Sean Whaley & James Dehaven, Legal Hurdles Cleared, Nevada Sees First Same-Sex Marriage, Las Vegas Review-Journal (Oct. 9, 2014, 7:58 PM), http://www.reviewjournal.com/news/nevada/legal-hurdles-cleared-nevada-sees-first-same-sex-marriage (“Clark County granted its first same-sex marriage license just after 5 p.m.” on 10/9/2014).

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

   The State of Nevada began issuing same-sex marriage licenses on October 9, 2014. We confirm that POMS RM 10212.35.A.18 accurately reflects this change in Nevada law.

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

   Yes. Effective October 9, 2014, the District Court’s injunctive order 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. Nevada Administrative Code § 483.055 provides that a person who wishes to change the name indicated on his or her driver’s license may do so by showing a marriage certificate. Nev. Admin. Code § 483.055. The Code does not distinguish between same-sex and opposite-sex marriages. Id. Accordingly, same-sex couples may change their names based on their marriage.

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

   No. Nevada does not require that a State of Nevada domestic partnership² be terminated at the time of a marriage between the same two partners.³ Domestic Partnership - FAQ, Nevada Secretary of State Ross Miller, available at http://nvsos.gov/index.aspx?page=274. To the contrary, the domestic partnership will continue to exist after marriage unless specifically terminated. See id.

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

   None. A domestic partnership will continue to exist even after the domestic partners enter into a marriage if the partners did not terminate their domestic partnership pursuant to Nevada Revised Statute § 122A.300. See Domestic Partnership - FAQ, Nevada Secretary of State Ross Miller, available at http://nvsos.gov/index.aspx?page=274 (“the domestic partnerships in Nevada will not be automatically converted to marriages.”); Nev. Rev. Stat. § 122A.300 (procedures for terminating a domestic partnership).

Footnotes:

[1]

Sevcik v. Sandoval, No. 2:12-cv-00578 (order) (D. Nev. Oct. 9, 2014), available at http://cdn.ca9.uscourts.gov/datastore/general/2014/10/10/12-17668%20District%20Court%20Order.pdf .

[2]

Nevada permits domestic partnerships between persons of the same or opposite sex. See Nev. Rev. Stat. § 122A.100(2).

[3]

The State of Nevada will only recognize a non-marital legal union entered in another jurisdiction if the couple registers that legal union with the Nevada Secretary of State. See Nev. Rev. Stat. § 122A.500. If registered, Nevada will recognize the legal union as a valid Nevada domestic partnership. Id.