A Married Woman\u27s Surname: Is Custom Law?

A general awakening of concern for the rights of women has occurred in recent years, and with it the particular problems of married women have been analyzed against a background of centuries of legal and social assumptions. With the impetus of employment discrimination legislation, the proposed equal rights amendment, and litigation raising sex discrimination issues, it is not surprising that many women are actively seeking to retain their pre-marriage names. This movement compels us to re-examine the custom that a woman must assume her husband\u27s surname upon marriage. That such a phenomenon is custom and not law deserves our attention for several reasons. First, a name is an obvious and significant symbol of a person\u27s identity-a woman\u27s birth-given name is the name by which she is known and with which her achievements are associated. Secondly, despite growing enlightenment about women and their roles in society, many judges are making decisions based upon misreadings of the common law and precedents in older cases, without proper examination of constitutional and policy considerations. Thirdly, the proposition stated so positively in legal encyclopedias that a woman upon marriage takes her husband\u27s surname actually reflects one more unknowing or unintended discriminatory practice which perpetuates male dominance solely by the fact of maleness. Arbitrariness is not a policy which should be lightly pursued; we should at least expect that our laws are reasonable and that our courts articulate and encourage reasonableness. Therefore, although I first examine the history of surnames, the focus of this Article is an inquiry into two questions which the courts must resolve: First, under the common law can women retain their pre-marriage names during marriage; and secondly, if not, is the imposition of the husband\u27s name on his wife constitutional