Feminist Law Prof Suzanne A. Kim (Rutgers-Newark) has posted to SSRN her article, “Marital Naming/Naming Marriage: Language and Status in Family Law.” Here is the abstract:
What’s in a name? Based on current family law and policy debates, the answer would seem to be: a whole lot. Controversies over labels and naming in family law plainly manifest the view that the language we use to describe family law institutions and the people in them matters deeply. Puzzling, then, is the current prevailing view of marital naming practices. Despite formal legal equality between women and men regarding names, women almost universally still adopt their husbands’ last names upon marriage. Research suggests that this practice may even be on the rise among college-educated women, who typically have been more likely than other women to keep their names. Why is the persistence of marital name-changing relevant today? Today’s discussions of family law abound with the assumption that language, in the form of names and labels, is deeply meaningful from a status perspective. The same-sex marriage debate is a key area in family law in which most agree that language bears status effects. Despite this firmly held assumption, the status effects of language in the marital names context are largely ignored. This article fills this gap in current family law scholarship by identifying the gender hierarchy dynamics inherent in the current marital naming regime, which aspires to gender equality and theoretically operates by choice. This article situates marital naming practices, in a novel way, in connection with the debate over “naming marriage” in the same-sex marriage debate. In drawing connections between marital naming and naming marriage, this article also makes an important contribution to family law scholarship by providing an explicit account of how language plays a critical yet unexamined role in reflecting and reinforcing hierarchy within marriage and beyond.
The full article is available here. Suzanne weaves some connections between same-sex marriage and opposite-sex marriage that I hadn’t considered before. I look forward to reading this piece in more detail.