Debra and Robert were in the
middle of a divorce. While the paperwork was being filled out, she met
Gary.
Gary got Debra pregnant. She
had a baby named Alicia. Although Gary was the father, the registrar
would not allow Alicia's birth certificate to have Gary's last name.
Under Nebraska State law, a
child born into wedlock must have the mother's husband's last name
(Robert's).
In most States, there is a presumption
of paternity, meaning that if a
couple is still married, any children are presumed to be the child of
the husband.
In some States this
presumption is irrebutable!
Debra gave in and gave Alicia
Robert's last name. However, she left the 'father's name' birth
certificate blank. Later, she applied to have Alicia's birth certificate
amended to list Gary as the father, but the Registrar denied the request.
In a totally separate case,
Linda (who was single) had a baby with Ray. Linda wanted the baby's last
name to be 'McKenzie', just because she liked it. The Registrar denied
the request.
Neither Linda nor Ray was
related to anyone with the last name McKenzie, but she had already named
her other two kids McKenzie.
Debra sued the Nebraska Dept.
of Health (Wright), and the Dept. of Vital Statistics, claiming that the
restrictions on names were unconstitutional.
Linda intervened and joined
the lawsuit.
The Trial Courts found for
Debra and Linda and found the Nebraska Statute (Neb.Rev.Stat.
§71-640.01) unconstitutional.
Nebraska appealed.
The Trial Court found that
the restrictions were a violation of the right to privacy in the 14th Amendment.
The Appellate Court reversed.
The Appellate Court found
that the courts should apply a rational basis test to determine the constitutionality of the
Statute.
The Court found that there
was no fundamental right to name your
kids whatever you wanted. Therefore the rational basis standard was the appropriate level of review
(as opposed to strict scrutiny).
The Court noted that there
is no historical tradition of allowing parents to choose their child's
last name.
The Court found that there
was a rational basis for the
Statute.
The Statute promotes the
welfare of children by giving them familial connections, it insures that
the names of citizens are not appropriated for misleading purposes (such
as false implication of paternity), and it makes for inexpensive and
efficient record keeping.
In a dissent, it was argued
that people have a 1st Amendmentright to free speech to name their child whatever
they want. In addition, it has been established parents do have a fundamental
right to raise their child as they see
fit. The dissent felt that naming the child should be considered part of
raising the child.
The dissent asked why if
women have a fundamental right to
not have children in the first place, how could they not have a right to
name them?
Debra could have gotten a
judicial determination of paternity, proving that Gary was the father.
Then she could have gotten Alicia's birth certificate changed. Also,
Linda could have had her name legally changed to 'McKenzie' and then all
of her children's names could be changed to match.
