Changing name changing: Framing rules and the future of marital names

University of Chicago Law Review

Volumn 74, Issue 3, 2007, Pages 761-863

  Emens, Elizabeth F ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 36248979073     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (100)

1. See Lawrence Lessig, The Regulation of Social Meaning, 62 U Chi L Rev 943, 993-99 (1995) (indicating that when an "individual or part of the collective wants to transform a social meaning, that individual or part faces a collective action problem, since it must succeed in inducing a collective response from a sufficiently large portion of the total society to assure the social change of meaning").
2. The phrase "Mrs. His Name" has been used by others. See, for example, Jean M. Twenge, "Mrs. His Name": Women's Preferences for Married Names, 21 Psych Women Q 417, 425 (1997).
3. NY Dom Rel Law § 15(b) (McKinney 1999).
4. Ellen Goodman, The Name of the Game, Boston Globe 30 (Sept 24, 1974).
5. What to Call What's-His-Name, Virginian-Pilot A10 (Jan 5, 1981).
6. See, for example, Julia C. Lamber, A Married Woman's Surname: Is Custom Law?, 1973 Wash U L Q 779, 783-807;
7. Shirley Raissi Bysiewicz and Gloria Jeanne Stillson MacDonnell, Married Women's Surnames, 5 Conn L Rev 598, 602-20 (1972).
8. Morrison Bonpasse, quoted in Chris Poon, The Name Game - A Bride Has to Decide: Should She Change, Stay the Same, Hyphenate, or Invent?, Providence Journal-Bulletin 8L (Oct 17, 1999). Bonpasse is currently the Executive Director of the Lucy Stone League, a group established in the 1920s to fight for women's right to retain their birth names after marriage, and rejuvenated in 1997 to promote egalitarian naming practices more generally.
9. See also Amanda Bower, It's Mrs., Not Ms.: In a Return to Tradition, More Brides Are Taking Their Husband's Name, Time Bonus Section W4 (June 6, 2005).
10. Compare John Stuart Mill, A System of Logic 23 (Harper 1850): The only names of objects which connote nothing are proper names. . . . A proper name is but an unmeaning mark which we connect in our minds with the idea of the object, in order that whenever the mark meets our eyes or occurs to our thoughts, we may think of that individual object.
11. People of course take nicknames and screen names, which informally alter their names. See, for example, Stephanie Rosenbloom, Mi, A Name I Call Myself. And You Are?, NY Times G1 (Apr 13, 2006). It may be that more people are formally changing their names outside of marriage, though still in small numbers.
12. For instance, between July 2005 and June 2006, New Jersey state courts received 4,690 case filings for name changes outside of the marital context (equivalent to approximately 0.05 percent of the state population), which was a 15 percent increase from the previous year. See New Jersey Judiciary Civil Statistics (June 2006) 87, table Civil Caseload Summary by Case Type.
13. The third principle of the United Nations Declaration on the Rights of the Child, adopted in 1959, is that "[t]he child shall be entitled from his birth to a name and a nationality." Resolution 1386, UN General Assembly, 14th Sess, 841st mtg (Nov 20, 1959), UN Doc A/RES. Although legal names are generally a matter of individual choice in the U.S. (in the absence of fraudulent intent), not having a name at all - and being identified by a number instead - is probably not an option. See In re Dengler, 287 NW2d 637, 639 (Minn 1979) (upholding a denied application for a change of name to "1069");
14. Thomas M. Lockney and Karl Ames, Is 1069 a Name?, 29 Names 1 (1981). To some, being identified by a number, even in addition to a name, is a spiritual harm. See Bowen v Roy, 476 US 693, 696 (1986) (rejecting the Free Exercise claim of a Native American father who argued that being assigned a "Social Security number . . . will serve to 'rob the spirit' of his daughter and prevent her from attaining greater spiritual power").
15. See, for example, Gordon W. Allport, Pattern and Growth in Personality 115 (Holt, Rinehart and Winston 1961) (noting that children's names are integral to "awareness of independent status in the social group").
16. If identification with names seems doubtful, think how offended people can be when others forget their names.
17. See generally United States v Kenneth Loggins, 777 F2d 336 (6th Cir 1985).
18. See Margaret Jean Intons-Peterson and Jill Crawford, The Meaning of Marital Surnames, 12 Sex Roles 1163, 1165-71 (1985) (finding, in a study of university students and other affiliates, that both males and females tended to identify strongly with their names, but that both men and women thought women identified less strongly than men).
19. See also Deborah A. Duggan, Albert A. Cota, and Kenneth L. Dion, Taking Thy Husband's Name: What Might It Mean?, 41 Names 87, 91-92 (June 1993).
20. Of course, when men become doctors or professors or PhDs, few balk at adopting the new title of "Dr." or "Professor," and those who do refuse the title tend to do so in an attempt to resist hierarchy.
21. This applied to all those whose Jewish identity was not "already self-evident" from their names, and required that these new middle names be used in all official documents and communications. See Robert M. Rennick, The Nazi Name Decrees of the Nineteen Thirties, 18 Names 65, 76-77 (1970).
22. See William Petersen, Surnames in US Population Records, 27 Population & Dev Rev 315, 316 (2001).
23. See Omi [Morgenstern Leissner], The Problem that Has No Name, 4 Cardozo Women's L J 321, 330-31 (1998);
24. Frank Nuessel, The Study of Names: A Guide to the Principles and Topics 4-5 (Greenwood 1992);
25. Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made 444-50 (Pantheon 1974).
26. Alex Haley, Roots 181 (Doubleday 1976). This is after the word "name" has appeared thirty-four times in the book already - and prominently, as when Kunta is given his family's name. Much emphasis is placed on the importance of Kunta's name to his identity and pride, as he wants to "shout" in response to Samson who's bearing this bad news: "I am Kunta Kinte, first son of Omoro, who is the son of the holy man Kairaba Kunta Kinte!" Id.
27. See Part III (discussing factors relevant to devising a sustainable egalitarian convention).
28. See Una Stannard, Mrs Man 112, 115 (Germain 1977) (remarking that, at common law, surnames had "original mutability" and did not require court approval for change).
29. Frederick Dwight, Proper Names, 20 Yale L J 387, 387 (1911).
30. See Stannard, Mrs Man at 112 (cited in note 21). Stannard says surnames did not become common until the time of Henry VIII (the sixteenth century), though other sources suggest their widespread use prior to that time.
31. See also David Hey, Family Names and Family History, 51 Hist Today 38, 39 (July 2001) (stating that use of surnames "began to spread in southern England and East Anglia from about the middle of the thirteenth century and was largely completed across the country within the next two hundred years");
32. Judith M. Bennett, Spouses, Siblings and Surnames: Reconstructing Families from Medieval Village Court Rolls, 23 J Brit Stud 26, 37 (1983) (noting that in the late thirteenth century, "almost all court citations identified individuals by both forename and surname");
33. GS. Arnold, Personal Names, 15 Yale L J 227, 227 (1905) (stating that surnames became "universally necessary" in the early fourteenth century).
34. See Arnold, 15 Yale L J at 227 (cited in note 23).
35. Lamber, 1973 Wash U L Q at 781 (cited in note 6);
36. Bysiewicz and MacDonnell, 5 Conn L Rev at 600-01 (cited in note 6).
37. Stannard, Mrs Man at 112-14 (cited in note 21). On this practice in some contexts in Japan, see note 144.
38. Sandra L. Rierson, Race and Gender Discrimination: A Historical Case for Equal Treatment under the Fourteenth Amendment, 1 Duke J Gender L & Policy 89, 91 (1994) (quoting a seventeenth-century treatise on this point: "When a small brooke or little river incorporateth with Rhodanus, Humber, or the Thames, the poor rivulet looseth her name").
39. According to The American and English Encyclopedia of Law: "By custom, the wife is called by the husband's name; but whether the marriage shall work any change at all is, after all, a mere matter of choice, and either may take the other's name, or they may join their names together." 9 The American and English Encyclopedia of Law 813 (Thompson 1887-18%),
40. quoted in Una Stannard, Manners Make Laws: Married Women's Names in the United States, 32 Names 114, 117 (June 1984).
41. The foundational dicta came from Chapman v Phoenix National Bank, 85 NY 437, 449 (1881), a case involving an overzealous wartime action to confiscate property. The court set aside the action to confiscate, reasoning that improper notice of forfeiture was given because the notice was in the married woman's maiden name. Though reaching an apparently just result on the facts, the court gave us the following unfortunate dicta: "For several centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband's surname." Of course, not only was this dicta, it was also incorrect, as this was not common law, but rather simply custom. See also Omi, 4 Cardozo Women's L J at 352-54 (cited in note 18);
42. Lamber, 1973 Wash U L Q at 783-95 (cited in note 6).
43. See, for example, Freeman v Hawkins, 77 Tex 498, 14 SW 364, 364-65 (1890) (concluding that constructive service in a married woman's maiden name is not sufficient legal notice to give a court jurisdiction to bind the woman); Bacon v Boston Elevated Railway Co, 256 Mass 30, 152 NE 35, 36 (1926) (involving a tort suit for a car crash in a car registered in the female driver's maiden name); Rago v Lipsky, 327 Ill App 63, 63 NE2d 642, 647 (1945) (interpreting a state statute - and reversing a trial court's interpretation to the contrary - to mandate that a woman's voter registration in her maiden name is automatically cancelled upon marriage, and that she must reregister in her married name in order to vote). See also Forbush v Wallace, 341 F Supp 217, 220-22 (MD Ala 1971) (concluding that the state's unwritten regulation requiring married women to obtain drivers licenses in their husband's names, and the state's common law rule that a woman's name automatically changes to her husband's at marriage, both have a rational basis, particularly because she can apply for a name change through probate court (so the harm to her is de minimis), but noting that "no area of the law seems more unsettled today than the guarantees and the protection of women's rights under the Constitution"), affd without opinion, 405 US 970 (1972) (affirming the three-judge district court's decision without opinion one year before heightened scrutiny for sex-based classifications was established). For a discussion of this case, see Lamber, 1973 Wash U L Q at 795-800 (cited in note 6). Federal rulings have also built upon the erroneous dicta in Chapman.
44. See In re Kayaloff, 9 F Supp 176 (SDNY 1934) (holding, under Chapman, that a female musician could not be naturalized in her maiden name, rather than her married name). For a chart of state laws as of the early 1970s, see Lois B. Gordon, Statutory Development: Pre-Marriage Name Change, Resumption and Reregistration Statutes, 74 Colum L Rev 1508, 1520 (1974).
45. Only one state passed a statute explicitly mandating that women change their names: Hawaii, apparently for reasons of westernization. See Hawaii Rev Stat § 574-1 (1968) ("Every married woman shall adopt her husband's name as a family name."). This law has since been superseded.
46. See Hawaii Rev Stat § 574-1 (1993 & Supp 2004) (allowing for choice in marital naming). See also Stannard, 32 Names at 127 n 25 (cited in note 28) (referencing the Hawaiian exception);
47. Bysiewicz and MacDonnell, 5 Conn L Rev at 602-03 (cited in note 6) (examining state laws of name change).
48. See, for example, Kruzel v Podell, 67 Wis 2d 138, 226 NW2d 458, 463-66 (1975) (concluding that a woman's name does not - and need not - change to her husband's on marriage, if she consistently uses her maiden name, in response to a petition from an art teacher whose public school insisted she register for health insurance under her husband's name); Dunn v Palermo, 522 SW2d 679, 688-89 (Tenn 1975) (holding that neither custom nor law requires that a woman's name change to her husband's at marriage, and thus that the plaintiff's name was wrongly purged from the voter rolls when she declined to reregister in her husband's name); Stuart v Board of Supervisors of Elections for Howard County, 266 Md 440, 295 A2d 223, 227 (1972) (concluding that a married female voter could continue to vote in her maiden name if she showed cause that she had used her maiden name consistently and nonfraudulently). See also Claudia Goldin and Maria Shim, Making a Name: Women's Surnames at Marriage and Beyond, 18 J Econ Persp 143, 144-45 (2004) (noting the legal changes regarding marital name change in the 1970s, especially the Dunn decision);
49. Kif Augustine-Adams, The Beginning of Wisdom is to Call Things by Their Right Names, 7 S Cal Rev L & Women's Stud 1, 4-9 (1998) (surveying case law). An earlier precedent against mandatory name change for women is Krupa v Green, 114 Ohio App 497, 177 NE2d 616, 620 (1961), in which the court denied a taxpayer's petition to prevent a married woman from appearing on the ballot for municipal judge using her maiden name, Blanche Krupansky. For a federal case under Title VII, see Allen v Lovejoy, 553 F2d 522 (6th Cir 1977) (holding that Title VII was violated when a county employer suspended a female employee for refusing to sign a form authorizing postmarriage name change in personnel file).
50. See, for example, Kruzel, 226 NW2d at 466; Dunn, 522 SW2d at 689; Stuart, 295 A2d at 228. Interestingly, these cases implicitly approve the constitutionality of differential procedural burdens on men and women in this regard; for instance, under Stuart, a female voter who had never used any name but her maiden name would still have to show cause to the Board of Elections to indicate that she had used only her maiden name, and nonfraudulently so, to be registered to vote in that name. 295 A2d at 228.
51. 522 SW2d 679 (Tenn 1975).
52. Id at 688-89.
53. Id at 688.
54. UN GAOR Human Rights Committee, 74th Session, UN Doc CCPR/C/74/D/919 (2000).
55. Id.
56. This belief may be particularly common in the United States, with its peculiar brand of individualism. Though the footnotes mention cross-cultural reference points, the focus throughout the Article is nonetheless U.S. laws and conventions.
57. Telephone conversation with Clerk, Jasper County, Missouri, Recorder of Deeds (June 28, 2006) (responding to the question of whether a husband could legally take his wife's name or hyphenate his name at marriage). For the protocol of these telephone conversations, see note 175.
58. Leslie Maitland Werner, The Gray Presidency - The First Ten Years, 81 U Chi Mag 7, 10 (Fall 1988).
59. See, for example, Alison Lobron, The Same-Name Game, Boston Globe Magazine 40 (Oct 30, 2005);
60. Tracy E. Higgins, Why Feminists Can't (or Shouldn't) Be Liberals, 72 Fordham L Rev 1629, 1633-34 (2004).
61. See Part II.A (collecting sources). Among the notable exceptions is Laurie Scheuble and David R. Johnson, Marital Name Change: Plans and Attitudes of College Students, 55 J Marriage & Fam 747, 750 (1993), which gathered data on college student attitudes to male, as well as female, marital name change. They found, in response to the question "[i]f a man marries, under what circumstances should he take his wife's last name?," the following: "If his wife wants him to take her last name" - males (12.0 percent), females (19.0 percent) (not a significant difference); "If he wants to change his last name" - males (70.0 percent), females (84.8 percent) (a significant difference); "If he marries a woman who is well-known in her field of work" - males (14.0 percent), females (19.0 percent) (not a significant difference); "A man should never change his name to the last name of his spouse" - males (33.0 percent), females (19.6 percent) (a significant difference). Id. In light of the study's interest in those attitudes, however, it is striking that even Scheuble and Johnson asked only the female subjects if they planned to change their own names to their spouse's if they married. See id at 749-50.
62. See notes 54-55 and accompanying text (discussing these studies).
63. See, for example, Samanatha Sordyl, More Men Take Plunge - With Her Name: Although Still Rare, Husbands Are Changing Their Last Names When They Get Married, Orlando Sentinel E3 (Jan 6, 2005);
64. Ann Doss Helms, How N.C. Sees the Male Name Game: Should Common Law on Married Women's Names Apply to Men?, Charlotte Observer 2E (June 19, 2001);
65. Jessica McBride, More Grooms Are Saying 'I Do' to Taking Bride's Last Name in the Name of Love, Milwaukee J Sentinel sec Lifestyle at 1 (Nov 28, 1999);
66. Paula Span, Taking a Wife, and Her Name, Wash Post F01 (Jan 9, 1998);
67. Sam Howe Verhovek, My Maiden Name, NY Times sec 6 at 18 (May 14, 1995);
68. Roger L. Welsch, The Hyphenated American, 103 Natural Hist 24, 24-25 (1994).
69. See notes 64-65 (quoting articles and postings).
70. See Part II.B (citing data indicating that the vast majority of women who make unconventional naming choices for themselves still give their children his name).
71. Peggy Noonan, Looking Forward, Good Housekeeping 208 (Oct 1996). She continues: Maybe, for these brides, taking their husbands' names is a declaration not only of intention, but of faith. Maybe they are suspending disbelief. Marriage itself is a marvelously faithful act. It shows that you have faith in yourself and your spouse, and also in life, in the ability of things to stay and grow and endure.
72. See U.S. Census Bureau, Educational Attainment of the Population 15 Years and Over, by Age, Sex, Race, and Hispanic Origin: 2005, online at http://www.census.gov/population/www/socdemo/education/cps2005.html (visited July 8, 2007).
73. Lobron, The Same-Name Game, Boston Globe Magazine at 40 (cited in note 42).
74. See note 4 and accompanying text (supplying the epigraph to this Part). The other candidate for the epigraph to this Part was "I've always wanted to be Mrs. Somebody Else." Conversation with anonymous New York City hairdresser (May 26, 2006).
75. See, for example, Daniel Kahneman, Jack L. Knetsch, and Richard H. Thaler, The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J Econ Persp 193, 205 (1991).
76. Of course many women do become attached to their names. One study of university students and faculty and staff, mentioned earlier, found that about half of both the male and the female undergraduates - and more than half of the male and the female graduate students and faculty and staff - reported feeling identified with their (premarital) names, though both males and females thought that women identified less strongly and that it was psychologically easier for women to change their names than men. See Intons-Peterson and Crawford, 12 Sex Roles at 1165-66 (cited in note 14). Even in this sample, the females nonetheless reported a significantly greater willingness to change their names than did men. Id at 1166-67.
77. See Susan J. Kupper, Surnames for Women: A Decision-Making Guide 65-67 (McFarland 1990) (reporting, in a study of women who made unconventional naming choices, that "it was unusual for husbands to have an immediate and unquestioning acceptance of their wives' names. Many felt an initial ambivalence or even opposition to the idea, but gradually came to accept and support it"). This is consistent with another study that found that men whose wives kept or hyphenated their names reported feeling less happy with their wives' names.
78. Andrea Anderson, The Relationship between Wives' Marital Last Name Style and Husbands' Self-Esteem, Locus of Control, Gender Role and Perception of Power within Their Marriage 97-99 (unpublished PhD dissertation, Alliant International University, 2005).
79. See Kupper, Surnames for Women at 65-67 (cited in note 54).
80. See Claire E. Etaugh, et al, "Names Can Never Hurt Me?": The Effects of Surname Use on Perceptions of Married Women, 23 Psych Women Q 819, 821 (1999) (reporting on a study of 222 male and female university students who read a description of, and rated on fifty-one traits, a woman who took her husband's name, kept her own name, or hyphenated her name, and finding that subjects viewed the women who kept their birth names or hyphenated as "more agentic and less communal");
81. Donna L. Atkinson, Names and Titles: Maiden Name Retention and the Use of Ms., 9 J Atlantic Provinces Linguistic Assn 56, 69-70 (1987) (reporting on a survey of 325 Canadian respondents about women who keep their last names and who use "Ms." and finding similar stereotypes about both practices, that is, that the women were "career-oriented," "independent," and not "submissive"; "feminist" was also associated with "Ms.," though not significantly; contrary to the author's hypothesis, "unattractive" was not associated with "Ms.");
82. Sheila M. Embleton and Ruth King, Attitudes towards Maiden Name Retention, 66 Onomastica Canadiana 11, 17 (1984) (reporting on the results of having asked forty-three Canadian respondents (thirty-one males and twelve females) in a campus pub and in a strip bar about women's names and finding that subjects associated a woman's retaining her own name with assertiveness and, for the male subjects, orientation towards job rather than towards home or family).
83. See also Duggan, Cota, and Dion, 41 Names at 95 (cited in note 14) (discussing such findings). Finally, one study showed substantial tolerance among male (57.0 percent) and female (91.8 percent) college students of women's keeping their names, but a preference by both males (51.0 percent) and females (54.4 percent) that, if there are children, the wife takes the husband's name. The difference between male and female views on the latter point was not statistically significant.
84. Scheuble and Johnson, 55 J Marriage & Fam at 750 (cited in note 43).
85. See Omi, 4 Cardozo Women's L J at 397-98 (cited in note 18).
86. Robert R. Holt, Studies in the Psychology of Names 312 (unpublished BA thesis, Princeton University, 1939).
87. In re Hauptly, 262 Ind 150, 312 NE2d 857, 861 (1974) (Hunter concurring) (quoting the state's brief to the Indiana Supreme Court). The dissent from the majority decision to grant the name change expressed a similar view of the petitioner: "[T]he petitioner's stated reasons for desiring the change indicate nothing but whimsey [sic] and an unusual psychological quirk. I know of no reason why the law should be concerned with such trivia." Id at 862 (Prentice dissenting).
88. See, for example, Jane Connor, et al, Use of the Titles Ms., Miss, or Mrs.: Does it Make a Difference?, 14 Sex Roles 545, 547-48 (1986). This is perhaps because they were thought to be concealing something important about themselves, that is, their marital status. Id at 548. Interestingly, though, the study did not find any other significant associations with "Ms.," such as with stereotypically masculine traits. For a fascinating case, with three separate opinions, rejecting a married woman's plea to register to vote under "Ms." rather than "Mrs.," see Allyn v Allison, 34 Cal App 3d 448, 453 (1973).
89. For women who have already been married, they may no longer bear their birth name, but rather another name that they have been known by for a shorter or longer period of time. The subject of names on divorce raises many interesting issues, as noted earlier. See note 120.
90. See Jon Elster, Sour Grapes: Studies in the Subversion of Rationality 109, 125-33 (Cambridge 1983).
91. See id. See generally Amartya Sen, Commodities and Capabilities (North-Holland 1985).
92. See, for example, Greg Risling, California Man Sues to Take Wife's Name; Bureaucratic Hurdles Violate 14th Amendment, Petition Says, Wash Post A04 (Jan 21, 2007) (reporting that the plaintiff was told by a clerk at the DMV: "Men just don't do that type of thing");
93. Jodi Rudoren, Meet Our New Name, NY Times sec 9 at 3 (Feb 5, 2006) (reporting comments to her husband after they merged their names, including "[i]t appears that married life has literally taken the 'man' out of you");
94. Jeanne Phillips, Dear Abby: Man Takes Wife's Name Despite His Mother's Threat, Charleston Daily Mail P2D (Sept 5, 2005) (asking when and how to tell the husband's mother that he took his wife's name, in light of mother's threat to "disown" him if he did so);
95. Verhovek, My Maiden Name, NY Times sec 6 at 18 (cited in note 45) (noting the "[l]emme get this straight" response of a former New York Post writer to a wedding announcement of the groom taking the bride's name, as well as the "occasional ribbing, always from other men, that real men don't take their wives' names");
96. Lou Gonzales, Man Finds Resistance to Name Change, Fla Times-Union D2 (Feb 10, 2000) (describing the reaction of the person in charge of name changes in military records as "[n]o dice. . . . 'You're the man. You're the man of the house.'").
97. See also Lessig, 62 U Chi L Rev at 998 (cited in note 1) ("Social meanings act to induce actions in accordance with social norms, and thereby impose costs on efforts to transform social norms.").
98. In more detail, here are some of the postings: "He is a wimp."; "[T]his guy is gay (not that there is anything wrong with that) and wants to be the feminine spouse."; "No. Of course I wouldn't [take my wife's name]. I am a man."; "Sure, I'd take my wife's name. Then my father would disown me, and he'd be right to do it."; and more colorfully (and curiously), "Taking your wife's last name?! [W]ow, no wonder this country is headed to hell in a handbasket. My sister is more of a man that [sic] a lot of men in this country." See Comments, Taking Wife's Name Not So Easy, USA Today (Jan 12, 2007), online at http://blogs.usatoday.com/ ondeadline/2007/01/taking_wifes_na.html (visited July 8, 2007).
99. On the lawsuit, see Risling, California Man Sues to Take Wife's Name, Wash Post at A04 (cited in note 64).
100. See Lessig, 62 U Chi L Rev at 997-98 (cited in note 1).