Eradicating Women's Surnames: Law, Tradition, and the Politics of Memory

By Anthony, Deborah | Columbia Journal of Gender and Law, November 2018 | Go to article overview

Eradicating Women's Surnames: Law, Tradition, and the Politics of Memory


Anthony, Deborah, Columbia Journal of Gender and Law


INTRODUCTION

"My name is my identity and must not be lost."-Lucy Stone

In explaining her reasoning for retaining her birth name after marrying Henry Blackwell in 1855, Lucy Stone, the first known American woman to keep her surname after marriage, fastened on a concept both implicitly and explicitly acknowledged in the annals of history: the symbolic nature of names and their centrality to one's individuality and identity. (1) She resisted what was understood to be the fundamental and essential tradition of wives adopting the husbands' surname after marriage, a tradition so fundamental as to be considered unassailable, even perhaps divinely ordained. Stone also gained the distinction of being the first woman denied the right to vote by reason of her name choice. (2) Even into the twenty-first century, the practice is considered one of the most fundamental aspects of traditional marriage, dating back to to the origins of surnames themselves, which lends it a kind of mystical legitimacy. Yet, the historical record of surnames tells quite a different story.

English surname usage prior to the seventeenth century was not only variable, but the practice for women bore little resemblance to the typical "traditional" practices seen in modern-day England and the United States. Women in England, like men, once held individualized surnames reflecting personal traits, occupations, or family relations. (3) When, centuries later, surnames began to be passed down to descendants, women often retained their own names after marriage, and were as likely as men to pass on those names to their children and grandchildren, and even at times to their husbands. (4) This surname flexibility, when considered with other historical evidence, suggests a more complex and nuanced status for women in English history than is typically acknowledged. Indeed, what we consider to be traditional when it comes to naming practices (i.e. women assuming the names of the husbands, and children those of the fathers) is in fact a relatively recent phenomenon rather than a product of ancient English practice. For roughly 800 years, English women underwent an extended period of decline in rights and status, with the most pronounced and abrupt shifts taking place in the early modern period beginning about the middle of the seventeenth century. That state of affairs became the foundational status quo at the establishment of the American colonies and eventually the new nation.

The advent of the Enlightenment, as well as the political creation of the nation-state and the advancement of colonialism and imperialism in the early modern period, brought about new notions of citizen and non-citizen, self and other. These concepts were employed to reinforce a patriarchal regime which deceptively claimed that the natural order, common sense, long history, and divine right supported the current male-oriented surname system in its creation of new systems of rights and identity. Strikingly, however, the collective social consciousness failed to acknowledge these developments. Instead, the older norms were wiped clean from collective memory and the new practices, being critical to maintaining the new dominant social status quo, were made "traditional." When new modern and strictly gendered practices emerged, they quickly became so entrenched and political that both social and legal mechanisms sprang up to enforce them. Courts justified restrictive decisions about women's surnames by reference to a "tradition" so fundamental and absolute that it merited legal coercion despite nearly a millennium of common law and empirical evidence to the contrary. (5) Today, while women in British and American society possess formal legal surname equality, sex-based naming conventions not only persist, but are also still enforced in certain ways via public policy. (6)

The law often draws its principles from custom and practice, and justifies itself by reference thereto. Yet conversely, the law also works to support or discourage certain social practices, and changing the law is often the first step in altering societal perceptions and practice. …

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