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Monday, December 18, 2006

Last Name Changes and Equal Protection

Many of my students are undoubtedly sick of my sanctimony when it comes to my beliefs about last names.  I tend to feel rather strongly that women shouldn't take men's last names (I know, I know: they are usually their father's name!) and that children shouldn't be given their father's last name.  Although one might think it is inappropriate to discuss these personal matters in contracts class, the issue actually comes up in a number of canonical cases.  Well, the issue itself doesn't come up as central to the case; but it is a good excuse for a fun digression.

Irrespective of your views on these questions, however, I take it you'd agree that it should be as easy for a man to change his name to his wife's upon marriage as it is for a wife to do the same.  If it is just a personal choice for which no one should be judged, that choice should be able to be made freely and without discrimination.  Alas, no such luck in California.  And the ACLU is trying to do something about it:

The ACLU of Southern California today will ask a federal court to bring marriage in California up to date by making the rules for a husband who wants to take his wife’s last name the same as for a wife taking her husband’s. Men must now pay court fees of more than $300 and advertise the name change in a newspaper. Women who choose to take their husband’s name when they wed pay only a $50-$80 marriage license fee.

...

Only six states recognize a statutory right for men to take their wives’ last name. They are: Georgia, Hawaii, Iowa, Massachusetts, New York, and North Dakota. No data exists on how common the practice is.

  I may give them a small donation this year.

We discussed the matter once before here.

Posted by Ethan Leib on December 18, 2006 at 03:20 PM in Current Affairs | Permalink

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Speaking as someone who recently married and took his wife's name, I'm glad we got hitched in Iowa. I had no idea it was such a pain in other states.

Posted by: Corey Rayburn Yung | Dec 18, 2006 3:58:59 PM

And the reason that they are knocking on the door of the courts rather than the California Assembly for this (undoubtedly reasonable) request is...? Force of habit, perhaps?

Posted by: Simon | Dec 19, 2006 8:00:41 AM

Ethan, you wrote: "I tend to feel rather strongly that women shouldn't take men's last names (I know, I know: they are usually their father's name!) and that children shouldn't be given their father's last name." Why?

Posted by: Rick Garnett | Dec 19, 2006 10:14:00 AM

in israel, a few years ago the supreme court ordered the state to stop changing automatically a new wife's last name to that of her husband. A couple of years after the decision, turned out the state was still making the automatic changes in the citizenship registery...

Posted by: Orly Lobel | Dec 19, 2006 3:52:27 PM

I echo Rick's question. And I'd add that whatever moral reasons you might adduce in support of your preference, your approach would make things needlessly difficult for future genealogists. Just from trying to research my own genealogy, it's hard enough to trace back who your ancestors were, even when you can count on parents all having had the same last name as their children. If they all had different last names, even within the same family and the same generation, that would just create one dead end after another.

Posted by: Stuart Buck | Dec 19, 2006 6:28:41 PM

whatever moral reasons you might adduce in support of your preference

"To the Rationalist, nothing is of value merely because it exists (and certainly not because it has existed for many generations), familiarity has no worth, and nothing is to be left standing for want of scrutiny. And his disposition makes both destruction and creation easier for him to understand and engage in, than acceptance or reform ... [H]e always prefers the invention of a new device to making use of a current and well-tried expedient." Oakeshott, Rationalism in Politics.

Posted by: Simon | Dec 19, 2006 7:46:53 PM

I'm with Ethan here on all particulars--the policy issue, our family decisions, the constitutional issue, and my reaction to the news item. Here is a question I was asked: What is the constitutional argument AGAINST this lawsuit? The state is imposing financial costs and administrative burdens on men that it does not impose on women, the policy is the result of nothing more than historical habit, and the costs of changing over to a regime where men were given the same name change option as women would be trivial. If I gave an exam with this question and asked the students to defend the ban, what could they possibly say?

Posted by: Andrew Siegel | Dec 20, 2006 6:37:27 AM

Whenever I read something from Oakeshott or Burke or whomever I always want to say something like, "Um, Yeah." (Of course they exadurate, but also of course the flip side of their argument applies just as well to them, and since they already claim not to care about rational argument they don't have much to say at that point.)

Posted by: Matt | Dec 20, 2006 9:36:26 AM

I am third on Rick's question. Why the heck would you feel “strongly” about other people’s choices of last names? Should I clear my son’s first name with you as well?

Posted by: Kate Litvak | Dec 20, 2006 2:34:50 PM

When I married, I changed my last name to my husband's for two reasons: I liked it better than my maiden name, and it made it easier to do things for my stepdaughter, such as helping at her school.

I tend to prefer everyone in a family having the same last name for logistical reasons. It just makes everything easier. Whether that last name is the wife's, husband's, or something they've made up, is rather irrelevant to me - and I think it should be to the courts, as well. However, given the "blended" state of most families today, I realize that bigger issues trump the "it's just easier" concern.

On a related side note, when I got divorced from the aforementioned husband, he tried to force me to change my name back to my maiden name - put it in his petition and everything - as if the name belonged to him.

Posted by: Bev | Dec 22, 2006 1:27:17 PM

"Whether that last name is the wife's, husband's, or something they've made up, is rather irrelevant to me"

Of course family names are a fairly recent invention in some parts of the world, as is putting family names last instead of first. Clan and organizational names are actually older.

The significance of what are basically arbitrarily assigned family names (John the Miller vs. John the Smith and John the Blacksmith and John who lives at Townsend) and how to transmit them to establish a smaller unit than the clan is an interesting one.

However, the impact on children and the value of sharing an associational name of some sort is very high as is the value to genealogists.

Would be fun if we could create associational names that were useful, yet morphed. But they are useful.

Posted by: Stephen M (Ethesis) | Dec 24, 2006 1:27:52 PM

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