WHAT'S IN A NAME? WHY GAY COUPLES SHOULD BE ALLOWED TO ADOPT EACH OTHER'S SURNAMES - PART II

By JOANNA GROSSMAN
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Tuesday, Oct. 17, 2000

Ed. -- This is Part Two of a two-part series by Professor Grossman. In Part One, Professor Grossman argues that a New Jersey judge's recent decision to deny a lesbian the right to change her name —by hyphenating her surname with that of her same-sex partner–was erroneous, according to governing New Jersey law. In this part, Professor Grossman examines whether women are wise to adopt a partner's name–in whole or in part–given the long history of women's attempts to win the right to retain their birth names after marriage, or revert to them after divorce.

Besides the misapplication of the New Jersey name change statute, the Bacharach case raises another important question. Given the sexist symbolism women's name changes have always carried, should lesbian women adopt their partners' names, either entirely or as part of a hyphenated combination, as was attempted here? Women fought hard for the right to keep their names. Should they now be seeking to change them?

Women's Historical Efforts to Legally Retain Their Birth Names After Marriage

For centuries, married women were forced, under the law, to assume their husbands' surnames. The assumption of a husband's name was a natural corollary to the legal concept of coverture–under which, upon marriage, a man and woman merged into a single being as far as the law was concerned. That single being needed only one name — the man's — symbolizing that it was the woman's separate identity that had been sacrificed in the merger.

In 1855, Lucy Stone refused to take her husband's surname because she valued her own identity (and because she did not want to be called "Henry," as convention would require). Her courage inspired women a generation later to form the Lucy Stone League, an organization dedicated to encouraging and enabling women to keep their birth names even after marriage. But the League, which existed in two incarnations a generation apart, and the 1974 Center for a Woman's Own Name met with strong resistance that persists even to this day.

Women were consistently denied the right to control their names. Well into the second half of the twentieth century, American states refused to issue driver's licenses or voter registration cards to married women in their birth names, even for women who had never used their "married" names. As late as 1971, the United States Supreme Court upheld against a constitutional challenge an Alabama statute that automatically changed a woman's legal surname to that of her husband upon marriage.

Whether a woman would keep her married name after divorce was also outside her control. In some cases, courts refused a divorced woman's request to reclaim her birth name for herself if her children used her married surname (which they almost always did since the right to name one's child was by law, and is still by custom, considered a paternal right). The adoption of a name different from one's children's was thought to cause them embarrassment and humiliation. In other cases, courts granted a man's request to force his ex-wife to refrain from using her married name after divorce.

Contemporary Legal Victories: How Women Won the Right To Their Names

Moreover, in the early 1980s, women began to prevail in lawsuits demanding the right to keep their own birth names during marriage, or to return to them after divorce. (The 1979 United Nations Convention on the Elimination of All Forms of Discrimination Against Women calls for women to be given equality in the right to choose a family name, although the United States has yet to ratify it.)

Today, American courts and legislatures have reached a consensus that a woman has the common law right but, importantly, not the obligation to assume her husband's surname upon marriage. And when she divorces, she has the right to take her own name back or assume any other name. Some legal hurdles do still exist. For example, a soon-to-be ex-wife must ask the court during divorce proceeding for permission to reclaim her birth name; if she forgets, some states require that she later institute a formal petition to do so.

The Persistence of Name-Changing Despite Legal Victories

Despite a century and a half of clamoring for legal change that was ultimately successful, the tradition of married women adopting their husbands' names persists. According to a recent survey, more than ninety percent of American women use their husbands' names exclusively. They do so despite the practical inconveniences (the need to obtain new identification, bank, and insurance cards; the difficulty of being located by old friends who might search for them on the Internet or otherwise; the disruption of credit histories; the loss of an entrenched connection to their parents and siblings, with whom they once shared a name) and the symbolic losses (namely, that of the woman's separate identity) that flow from that decision.

And almost no married women, even those that keep their own surname, give it to their children. In fact, the most commonly contested name-change petitions involve a mother seeking to change her children's surnames after divorce from their biological father's to their new stepfather's — not, significantly, to the mother's own birth name. And generally, few divorced women seek to give children their own birth names, even those who are raising their children as a single parent without the father's involvement.

Now that women have won the right to keep their names, why don't they exercise it? The answer is that cultural expectations are now the obstacle the law once was. Each woman who assumes her husband's name upon marriage signals to the world that, in some real way, men still run the show. But culturally, the symbol is read the other way: Women who keep their names are said to be the ones making a political statement. They face pressure from peers, potential husbands, and even their own mothers to follow tradition. (And from voters, too, in the case of Hillary Rodham Clinton). And the few men who dare to take their wives' names are ridiculed–as if the name change were emasculating (yet no one has ever suggested women lost their feminine nature by giving up their names). Name changing, in contrast, is romanticized — girls learn at a young age that name changes come with marriage, when they scribble their first names in their schoolbooks combined with the surnames of their latest crushes.

In short, both the legal history and cultural history relating to women's name changes show that they have often been used to oppress. Why would a same-sex, female couple seek to borrow that tradition in the first place?

For one thing, hyphenating — if done by both members of the couple, which Bacharach said she and her partner eventually intended to do — arguably allow each member to retain her identity, while still signifying the couple's union. Just as gays have adopted and inverted the meaning of slurs used by homophobes to debase them, they may also be able to adopt and invert the sexist symbolism of a name change.

Joanna Grossman is an associate professor of law at Hofstra Law School.

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