TN 31 (12-14)

A. PR 15-018 Same-Sex Marriages in West Virginia – INFORMATION

DATE: October 28, 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 West Virginia as evidence of a name change.

2. OPINION

BRIEF SUMMARY

After the United States Supreme Court declined to review the decision of the U.S. Court of Appeals for the Fourth Circuit in Bostic v. Schaefer, holding that Virginia’s statutory ban on same-sex marriage was unconstitutional, state officials in West Virginia agreed to abide by the Fourth Circuit’s mandate and implement procedures for same-sex marriage as quickly as possible. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied, ___ S. Ct. ___, 2014

WL 4230092 (2014). Although there is no express statute for a name change after marriage in West Virginia, same-sex couples can change their names in the same manner as opposite sex-couples, which includes presenting a certified marriage certificate to the West Virginia Department of Transportation to change their names on their drivers’ licenses. Finally, West Virginia law does not provide for civil unions or domestic partnerships, so there is no change in status or need to dissolve these unions or partnerships prior to entering into a 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:

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 or domestic partnership must be dissolved before entering into a same-sex marriage.

BACKGROUND

After the United States Supreme Court declined to review the decision of the U.S. Court of Appeals for the Fourth Circuit in Bostic v. Schaefer, holding that Virginia’s statutory ban on same-sex marriage was unconstitutional, state officials in West Virginia, which is also part of the Fourth Circuit’s jurisdiction, agreed to abide by the Fourth Circuit’s mandate and implement procedures for same-sex marriage as quickly as possible. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied, ___ S. Ct. ___, 2014 WL 4230092 (2014).

On October 9, 2014, the West Virginia Attorney General, Patrick Morrisey, issued the following statement:

On Oct. 6, 2014, the U.S. Supreme Court decided it would not take up the decision by the U.S. Court of Appeals for the Fourth Circuit to set aside Virginia’s law regarding same-sex marriage. By refusing to consider the appeal, the Supreme Court has caused the Appeals Court's decision to become final and binding on West Virginia. While we disagree with the Supreme Court’s decision to allow the Fourth Circuit’s opinion to stand and believe it improperly displaces state and local decision-making, we will respect it.

As the state’s Attorney General, it is my duty to defend state laws that have been passed by the state Legislature and are consistent with the Constitution. We have discharged this duty faithfully. In the upcoming days, we will now seek to bring to a close the pending litigation over West Virginia’s marriage laws, consistent with the Fourth Circuit’s now-binding decision.

As we have repeatedly indicated in our court filings, however, others not involved in the litigation will be necessary to actually bring the State into compliance with the Fourth Circuit’s decision. Neither the Attorney General nor the two named county clerks have the power to change uniform state marriage forms and procedures. Only the State Registrar may alter state marriage forms, and the Secretary of State’s Office has authority over marriage celebrants and their ability to solemnize marriages. While we will take steps to seek to end the litigation, the conclusion of the lawsuit cannot and will not alone effectuate the Fourth Circuit’s mandate.

http://www.ago.wv.gov/pressroom/2014/Pages/Attorney-General-Patrick-Morrisey-Says-His-Office-Will-Respect-U.S.-Supreme-Court-Decision.aspx (last visited Oct. 15, 2014)

The Governor of West Virginia, Earl Ray Tomblin, also issued a statement on October 9, 2014 indicating that he would abide by these court rulings. Specifically, Governor Tomblin stated:

As the attorney general stated today, recent rulings by several federal courts, combined with the refusal of the U.S. Supreme Court to hear this issue, make it clear that laws banning same-sex marriage have been declared unconstitutional.

I do not plan to take any actions that would seek to overturn the courts’ decisions. West Virginia will uphold the law according to these rulings, and I have directed state agencies to take appropriate action to make that possible….

http://www.governor.wv.gov/media/pressreleases/2014/Pages/GOVERNOR-TOMBLIN-ISSUES-STATEMENT-REGARDING-SAME-SEX-MARRIAGE-IN-WEST-VIRGINIA.aspx (last visited Oct. 15, 2014). Our office has confirmed with the Cabell County Clerk, that court clerks issued marriage licenses for same-sex couples as early as October 9, 2014 and that same-sex couples were married that same day. See also http://www.herald-dispatch.com/news/briefs/x1827256289/W-Va-AG-stops-defense-of-same-sex-marriage-ban (last visited Oct. 15, 2014); http://abcnews.go.com/US/wireStory/latest-developments-sex-marriage-26093426 (last visited Oct. 15, 2014) (indicating that marriages took place in Huntington and Cabell County on that date). Notably, if the parties to the marriage are over 18 years of age, there is no waiting period. http://hancockcountywv.org/couclerkmarriage.html (last visited Oct. 15, 2014) http://www.berkeleycountycomm.org/officials/court-clerk.cfm (last visited Oct. 15, 2014). Cf W. Va. Code § 48-2-103 (2014) (providing a waiting period for applicants under 18 years of age).

1) The date West Virginia will begin issuing marriage licenses and certificates to same-sex couples. As explained above, West Virginia began issuing marriage licenses on October 9, 2014, and marriage ceremonies took place that same day.

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

West Virginia permits the parties of a same-sex marriage to change their names in the same manner as any other person changing their name due to marriage. Although West Virginia has a civil process for a name change in which a party can petition for a court-ordered name change pursuant to W. Va. Code § 48-25-101 (2014), these formal procedures are not required for a name change following a marriage. West Virginia statutes do not specifically authorize a name change following a marriage by merely using the married name and producing a marriage license when required. Nevertheless, our office has confirmed that name changes after marriage can be performed and the West Virginia Department of Transportation website indicates that a certified marriage certificate can be submitted as proof of a legal name change, even though souvenir documents or ministerial copies are not acceptable. http://www.transportation.wv.gov/dmv/drivers-licenses/pages/default.aspx (last visited Oct. 15, 2014). Furthermore, our office has confirmed with the Supervisor, Drivers Licensing Department of the West Virginia Department of Transportation, that the policy is to allow same-sex couples to change their names based on marriage in the same manner as opposite-sex couples.

3) Whether there is any change to the status of a prior or new civil union or domestic partnership entered into in West Virginia. As West Virginia law does not provide for civil unions or domestic partnerships, this question is inapplicable.

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

West Virginia law does not provide for civil unions or domestic partnerships, so this question is inapplicable.

Nora R. Koch

Acting Regional Chief Counsel
By: ________________

Tara A. Czekaj
Assistant Regional Counsel