Pennsylvania Advisory Opinions August 20, 1973: AGO 62 (August 20, 1973)

Advisory Opinion Text

Women's rights to use their own name

1. A married woman has the right to continue to use the name given her at birth or "maiden name" after marriage.

2. A married woman can continue or change her operator's license or vehicle registration in or to her name at birth.

3. A woman need not change her name to her spouse's on the date of marriage.

4. The Pennsylvania Equal Rights Amendment means that the equality of women must be an official fact.

5. The State cannot rationalize sex discrimination based on efficiency.

6. "Actual name" as used in the Vehicle Code means either (1) a name assigned at birth, (2) the surname of a husband if so selected by a married woman, (3) a name changed by court order, or (4) the name by which a person is and has been known as demonstrated by reasonable evidence.

Honorable Jacob G. Kassab

Secretary

Department of Transportation

Harrisburg, Pennsylvania

Dear Secretary Kassab:

We have been asked by Ms. Arline Lotman, Executive Director, Commission on the status of Women, whether a woman, on marriage, must change her operator's license and vehicle registration with the Bureau of Motor Vehicles so as to reflect her husband's surname or "married name" or whether she has the option to continue to use her birth name or so-called "maiden name." We have also been asked whether women who currently have these records in their married names can have them changed to their birth names. It has been suggested that a married woman is compelled to file and have approved a change of name petition in the Court of Common Pleas of the county in which she resides if she wishes to use her birth name.

It is our opinion, and you are so advised, that a married woman has the right to continue to use after marriage the name given her at birth. Accordingly, a married woman may continue or change her operator's license or vehicle registration in or to her name at birth provided in fact she uses that name as her actual name.

The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. §§407, 612, provides that an operator's license and vehicle registration be in a person's "actual name." "Actual name," in our opinion, means either a woman's name at birth or her married name, at her option. She however should be consistent and not use the names interchangeably.

In reaching this conclusion, we are guided by the canons of statutory construction. Statutes must be interpreted as intended by the legislature. If it intended "legal name", it could have said so. If it intended a person who changes a name by marriage to notify the Motor Vehicle Bureau, it could have done so expressly. For example, Uniform Vehicle Code, §3-414(b), which has yet to be enacted in Pennsylvania, provides for a notice of change of name "whenever the name of any such person. . .is thereafter changed by marriage or otherwise such person shall within 10 days notify the department of such former and new name." (Emphasis supplied.)

What is a person's actual name? The sole function of a "name" is to identify the person to whom it is intended to designate. Department of Public Assistance v. Reustle, 358 Pa. Ill. 114, 56 A.2d 221, 223 (1948). For the history of names, see, Petition of Snook, 2 Pittsburgh Reports 26, 28-35 (1859), a report in this State of a case in the Common Pleas Court of New York. It was reported as it was believed that the discussion of the subject was exhaustive.

A married woman has the option to be identified as she deems fit whether it be by her name at birth or married name. There is no statutory authority mandating that a woman change her name to her spouse's on the date of marriage. It is strictly a social custom that has evolved over the years. At common law the only prohibition against the use of a different name was its use for fraudulent purposes. See, 3 Freedman Law of Marriage and Divorce in Pennsylvania, (2nd Ed. 1957), §712, pp. 1335-1336.

The notion that a woman loses her prior idenity by marrying is a weed that has flourished too long in this society. It undoubtedly is a vestige of the time when the wife was regarded, along with the children, as part of the husband's property. It had its genesis, we believe, in the following:

"By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the women is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert. . . under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture." (Emphasis supplied.) Blackstone's Commentaries on the haws of England 430, 1st Edition 1765).

Coverture or the doctrine of the condition or state of a married woman does not obtain in Pennsylvania. (Act of July 15, 1957, P.L. 969, 48 P.S. §32.1) Justice Black commenting on that doctrine, described as "peculiar and obsolete" in the majority opinion in United States v. Yazell, 382 U.S. 341, 15 L. Ed. 2d 404, 86 S.Ct. 500 (1966), stated that:

"... the Texas law of 'coverture' which was adopted by its judges and which the State's legislature has now largely abandoned, rests on the old common-law fiction that the husband and wife are one. This rule hjs worked out in reality to mean that though the husband and wife are one, the one is the husband. This fiction rested on what I had supposed is today a completely discredited notion that a married woman, being female, is without capacity to make her own contracts and do her own business. I say 'discredited' reflecting on the vast number of women in the United States engaging in the professions of law, medicine, teaching, and so forth, as well as those engaged in plain old business ventures as Mrs. Yazell was. It seems at least unique to me that this Court in 1966 should exalt this archaic remnant of a primitive caste system to an honored place among the laws of the United States." 382 U.S. at p. 361, 15 L. Ed. 2d at p. 415, 86 S.Ct. at p. 511 (dissenting opinion) (Emphasis supplied.)

Here Mrs. Yazell invoked Texas law as a shield against liability on a debt she incurred to the Small Business Administration. This obviously is not the law of Pennsylvania. It is no longer even the law of Texas as the statute involved in the case was repealed and Texas wives now have the capacity to contract.

The opinion expressed above that women have a choice, to be exercised with consistency, of their birth or married name and that Pennsylvania common law and The Vehicle Code are no bar to such a choice is, moreover, now compelled by the enactment of the Equal Rights Amendment to the Pennsylvania Constitution, Article I, §28. It provides:

"Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual."

A comprehensive article on the implications of the proposed federal equal rights amendment, which is, in effect, virtually the language in the Pennsylvania Constitution, supports the view that under such an amendment a woman would not be required to take her husband's name. "The Equal Rights Amendment : A Constitutional Basis For Equal Rights For Women," 80 Yale Law Journal 871 (April 1971). The article at page 940 states that:

"[T]he Equal Rights Amendment would not permit a legal requirement, or even a legal presumption, that a woman takes her husband's name at the time of marriage. In a case where a married woman wished to retain or regain her maiden name or take some new name, a court would have to permit her to do so if it would permit a man in a similar situation to keep the name he had before marriage or change to a new name. Thus, common law and statutory rules requiring name changes for a married woman would become legal nullities. A man and woman would still be free to adopt the same name, and most couples would probably do so for reasons of identification, social custom, personal preference, or consistency in naming children. However, the legal barriers would have been removed for a woman who wanted to use a name that was not her husband's."

The clear legislative intent of the Pennsylvania Equal Rights Amendment, Article I, §28, was to provide for equality between the sexes. The Amendment means that in Pennsylvania the equality of women must be an official fact, not an academic fact. It is self evident that there can be no such equality if a marriage ceremony abridges a female's right to use the name by which she was always known.

Certainly the state cannot rationalize sex discrimination based on efficiency. In the case of a woman who choose at the time of marriage to retain her birth name in the conduct of her affairs, use of her birth name will serve the interests of administrative efficiency.

"If a woman consistently uses the one name with which she was born, there would be no problems. The woman would hold herself out to the public, commercially and professionally, as the same person for her entire lite. Creditors would in no way be deceived; title of ownership would be easily traced since the name of the woman remains the same even after marriage; and state licensing regulations requiring that the licensee notify the state upon the change of name would not really be applicable since there would be no name change." "And Then There Were Two," Marija Matich Hughes, 23 Hastings Law Journal, 233 (Nov. 1971).

In the case of a woman who subsequent to her marriage chooses to use her birth name after having used her married name for a period of time, the administrative burdens are minimal at best. As this opinion holds, a woman in making the choice to use her birth name, must use that name consistently in the conduct of her affairs. In so doing she has chosen her birth name as her "actual name" not only for purposes of obtaining a driver's license or registering her automobile but for other activities as well, e.g. owning property, purchasing insurance, applying for social security benefits and entering into contracts and other financial arrangements. In making the choice to use the name she is known by for purposes of a driver's license or motor vehicle registration she is eliminating the possibility of confusion to the public and to administrative agencies with licensing functions. The administrative burden, if any, occurs when the woman seeks to choose her birth name and to change the name on her driver's license or vehicle registration from that of her married name to her birth name. Appropriately drawn regulations, by requiring production of a birth certificate, check book, property records, social security card or insurance policies or the signing of an affidavit or certificates of intent to use a birth name at the time of application for the license or registration, will assure PennDOT at the time the choice is made by the woman that the name the woman is choosing is the only one by which she is known and will be known.

In view of the slight, if any, administrative burdens imposed by permitting women to use their birth name, a construction of The Vehicle Code, supra, §§407, 612, so as to preclude women from using their names at birth, in our opinion, would be an unconstitutional interpretation. A construction contrary to the one prescribed by this opinion would have the effect of denying to a woman the use of her birth name merely because of the circumstance of marriage while at the same time a man, in the same circumstance of marriage, retains the right to use his birth name. Such an impediment based solely on differences of sex and supported by no compelling or even limited state or administrative interest would violate Article I, §28. The unassailable canon of legislative construction that the General Assembly does not intend to violate the Constitution of the Commonwealth, therefore, compels our interpretation of The Vehicle Code.

We realize that the result we have reached is contrary to Forbush v. Wallace, 341 F.Supp. 217 (M.D. Alabama N.D. 1971) aff'd without op. 405 U.S. 970, 31 L. Ed. 2d 246, 92 S.Ct. 1197 (1972). That case is clearly distinguishable for three reasons. Alabama's common law expressly held that married women had their husband's surname as their legal name; the Alabama Department of Public Safety had a regulation requiring each driver to obtain a license in the "legal name" and, therefore, required a married female driver's license applicant to use her husband's surname; and Alabama does not have an Equal Rights Amendment which precludes discrimination based on sex. In view of Frontiero v. Richardson, 411 U.S. 677, 36 L. Ed. 2d 583, 93 S.Ct. 1764, (May 14, 1973) it is questionable whether there would now be an affirmance. We believe further that the later decision of the Maryland Court of Appeals in Stuart v. Board of Supervisors, 266 Md. 440, 295 A.2d 223 (1972) is sounder and more consonant with today's world. The majority opinion by Chief Judge Murphy held that the mere fact of a marriage ceremony does not by operation of law automatically transfer the husband's surname to his bride.

In conclusion as there has been some confusion as to what "actual name" means in the Vehicle Code, §§407, 612, in areas other than the specific one indicated above, we will synthesize below what we believe is the proper interpretation of this phrase.

Actual name shall mean (1) the name assigned to a person at birth; (2) in the case of a married woman, the surname of her husband, if she so elects; (3) the name appearing in a court order in the case of a person whose name has been changed, pursuant to statute, by judicial action; and (4) in the case of an individual who uses a name other than that which would be determined by one of the above methods, the name by which such person is and has been known as demonstrated by reasonable evidence. While not intended to be inclusive, such evidence may include tax, social security, selective service and voter registration records.

Sincerely,

Edward J. Morris Deputy Attorney General

Israel Packel Attorney General

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Notes:

It is quite common for professional women to use their "birth names" rather than their married name. Judge Anne X. Alpern before her appointment as Attorney General used her birth name as she presently does as a Judge in Allegheny County. In 1952 she was designated by her name at birth by Governor John S. Fine as a "Distinguished Daughter of Pennsylvania" In How To Change Your Name And The Law Of Navies, by Lawrence G. Greene (1954), it is stated at p. 56 that

while a court may be reluctant to change the name of a married woman to a name other than that of her husband, there seems to be no legal bar to her assuming her maiden or any other name without the permission of a court. We see such changes constantly in the entertainment and commercial worlds, where women pursue their careers under their maiden or assumed names."

We do not believe that the common law has been modified by the Act of April 18, 1923, P.L. 75, as amended, 54 P.S. §1 et seq. At common law a married woman had the right to use her name before marriage for many purposes. See, Hanson's Appeal, 330 Pa. 390, 391 (1938) ; Egeter's Appeal, 32 D.&C. 164 86 P.L.J. 192. 52 York 40 (1938). The statute does not alter the common law. The purpose of this statutory change of name procedure is simply to secure an official or legal record. 65 C.J.S. NAMES §11(2), p. 27. The cases involving married women using this procedure to obtain a resumption of their name before marriage essentially involved children and the real purpose was to have the name of the children changed and the prime consideration in opposition to the application was the father's alleged right to have his children continue to bear his name.

The divorced woman's right to resume her "birth name" is specifically recognized by the Act of May 25, 1939, P.L. 192, as amended, 23 P.S. §98. It cannot be inferred therefrom that a woman who is married cannot use her birth name. The statute provides for a notice to be filed which would be ".. .competent evidence for all purposes of the right and duty of such woman to use her maiden name or her prior name thereafter." Clearly this legislation was more of a convenience so as to enable a divorced woman to clarify her new situation rather than a conferring of a right to use her birth name

The Congressional Hearings on the Equal Rights Amendment heard specific testimony as to discrimination against women with respect to name. Discrimination Against Women, Congressional Hearings on Equal Rights in Education and Employment, Edited by Dr. Catharine R. Stimp-son, (1973), "Are Women Equal Under the Law?" (Gene Boyer, May 1970) at p. 386.

The Social Security Administration recognizes the right of women to choose their birth name in connection with the Federal Social Security program and insurance companies, banks and other financial institutions do not appear to question the use by a woman of her birth name.

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