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

Jill Bacharach, a resident of New Jersey, wanted to change her name. Specifically, she wanted to hyphenate her surname with her lesbian partner's surname, in order to show unity and family commitment with her partner. In Bacharach's words, the change was intended to "tie each other to one another." To make a judicial record of her desired name, Bacharach had to petition a New Jersey court, a process that is usually a mere formality; across the country, courts routinely grant unopposed requests for name changes without even requiring a court appearance.

Not in this case, however. In a widely criticized ruling that Bacharach, with the help of the ACLU, is appealing, the judge denied Bacharach's application. He did so, he explained, because he believed the new surname would give the mistaken impression that she and her partner were married. He reasoned that since neither New Jersey nor any other state allows lesbians to marry, the state also should not sanction a name change that would suggest such a marriage had taken place. He suggested to Bacharach that she and her partner should "go to Vermont" if they wanted to get married, a reference to the fact that Vermont now permits same-sex couples to enter into a legally recognized civil union that comes with many of the benefits of marriage. And, in fact, Bacharach and her partner entered into a Vermont civil union shortly after this case was decided. But the judge's ruling can only be explained by disapproval of Bacharach's and her partner's relationship.

Interestingly, the real question in Bacharach's case is not whether she may use the hyphenated name, but whether the court will record it. People are, and always have been, free under the common law to adopt and use any name — so long as it is not done for criminal or fraudulent purposes. The name-change statute simply establishes a method for judicially recording name changes. Thus, as a practical matter, Bacharach will be able to go about her daily life adding her partner's surname to her own without any fear of legal repercussions.

Thus the judicial decision is, in the end, purely symbolic — but that does not mean it is unimportant. Throughout the history of name changes, symbolism has been powerful and significant. Both the judge's decision not to grant the name change, and Bacharach's decision to seek it in the first place, raise important issues.

The judge's decision in Bacharach was wrong — both as a matter of what the law should be, and as a matter of what it currently is. New Jersey law clearly entitles Bacharach (or any other resident) to select any new name, for any reason, as long as she does not intend to avoid creditors or criminal prosecution, or perpetrate any sort of fraud. None of these exceptions applies to this case. Despite the judge's belief to the contrary, no reasonable person would believe that Bacharach and her female partner were in fact married simply because they used the same name. That same-sex couples are not permitted to enter into a legally recognized marriage is certainly one of perhaps only a few legal principles that lawyers and laypersons alike know to be true.

Indeed, the name-changing statute does not require that the applicant state any reason at all for the change: she need only swear that the action is not being instituted on any prohibited basis. And a woman who marries a man need not petition to change her name at all. She need only dangle her marriage certificate in front of the Social Security Administration and the Department of Motor Vehicles — as well as her banks, credit card issuers, and health insurer — to get new cards reflecting her new name.

In recent years, New Jersey courts have also allowed a divorced woman to assume a new surname rather than keep her married name or return to her maiden name. And they even gave the green light to a pre-operative male-to-female transsexual to change her name from "John" to "Tina" in order to reflect her self-identified female gender. (New Jersey, like 19 other states, permits only post-operative transsexuals to obtain a new birth certificate reflecting their changed sex and name.)

In recognizing the rights of these various plaintiffs to choose nontraditional names, sometimes for nontraditional reasons, New Jersey courts have taken pains to warn against intervening in the name selection process where it will "chill" individual expression.

In short, there is no question that the New Jersey court's decision was erroneous as a matter of New Jersey law. Interestingly federal constitutional arguments regarding privacy and equal protection could also be raised — but they need not be reached here, since New Jersey law is clear. Preventing only gay couples from accomplishing name changes that others receive as a matter of rote cannot be justified under the law — its motivation, instead, is discrimination and bias. Even though discrimination against homosexuals is not subjected to close scrutiny under the equal protection clause, the Supreme Court in 1995 warned that governmental actions that disadvantage any group may be nonetheless invalidated if they are born of animosity against that particular group.

Read Part II of Professor Grossman's article.