Academic journal article Duke Journal of Gender Law & Policy

A Man's Right to Choose His Surname in Marriage: A Proposal

Academic journal article Duke Journal of Gender Law & Policy

A Man's Right to Choose His Surname in Marriage: A Proposal

Article excerpt

I. INTRODUCTION

   "I have no name;
   I am but two days old."
   What shall I call thee?
   "I happy am,
   Joy is my name."
   Sweet joy befall thee! (1)

The modern process of getting one's name requires multiple steps for most Americans. Parents typically give a child three names at birth. (2) The child's first name, also called the "given name," "forename," or "Christian name," (3) and middle name are typically chosen by the parents. (4) The child's last name, also called the "surname," is typically inherited from the parents. As most parents share the father's surname, the child will usually also share this surname. (5) As children grow up and become adults, they can change their surname by both common law and statutory methods in most states. However, by far the most common time to do so is at a change in marital status. (6) Typically, a wife takes her husband's surname upon marriage and reverts to her maiden name upon divorce.

Despite the United States' reputation as the land of the free, a place where people chase destiny and control their story, some Americans have seen the government insert itself into their naming process. In order to pursue this American Dream, numerous men and women have immigrated to the United States. Many of them shared the experience of enjoying a grand view of the Statute of Liberty on their boat trip to Ellis Island, the entry point to the American Dream and an access gate through which men and women gained freedom and control over their lives. (7) Unfortunately, for many of those immigrants Ellis Island also was a place where they lost control over something that had been with them since birth--their names. Many immigrants came out of Ellis Island with a name different from the one with which they entered. (8) Sometimes, a surname would be altered by the clerk for spelling purposes due to phonetic differences between cultures. (9) Other times, the name would be changed wholesale. (10)

Due in large part to the Ellis Island experience of my wife's grandfather, I decided to go against the grain and take her surname. (11) When my wife's grandfather made the journey from his birthplace of Italy to the United States, he was aware that many of those before him had their names changed by a clerk at Ellis Island. (12) He desired to retain control over his name, and so taught himself to clearly pronounce and spell "Frandina" to avoid having it changed for phonetic reasons. He was successful. However, my wife and her sister are the last two members of the family with the surname Frandina. It would have died with them had I followed the western patrilineal naming tradition.

As my situation demonstrates, there are options outside the western patrilineal naming tradition. Many such options involve a legal process. Yet, statutory authority for a man to change his surname to his wife's upon marriage only exists in seven of the fifty states. (13) Unbeknownst to me at the time I changed my surname, it was not authorized by statute either where I was married (Colorado) or where I went through the process of getting updated personal identification documents with my new surname (Ohio).

This paper argues that the Equal Protection Clause requires that men have the right to change their surname upon a change in marital status because women already have this right. It will first discuss the importance of names by arguing that names implicate the construction of identity in various significant ways. Second, a brief history of marital and naming practices will outline how these two concepts have shifted to a primarily private issue today, as compared with the Middle Ages, when they were primarily public issues highly concerned with property matters. The modern day legal issues surrounding a man changing his name will then be summarized. Further, it will be argued that naming decisions are primarily private rights as an expression of personal autonomy, and an equal protection argument will be proposed to achieve equality in name change rights for men upon a change in their marriage status. …

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