Marital Naming/Naming Marriage: Language and Status in Family Law

What's in a name? Based on current family law and policy debates, the answer would seem to be: a whole lot. Today's discussion of legal prohibitions of same-sex marriage abounds with the assumption that language, in the form of names and labels, is deeply meaningful from a status perspective. Missing from this debate, however, is a careful examination of the role that names and labels play in the construction of the status category of marriage.

This Article fills this gap in family law scholarship by providing an explicit account of how language plays a critical role in reflecting and reinforcing gender hierarchy within the status category of marriage. This Article does so by considering the question of "naming marriage" in the same-sex marriage debate, whether same-sex couples otherwise entitled to the benefits of marriage are and should be entitled to the term "marriage, " alongside the persistently gendered practices of "marital naming," by which women almost universally adopt their husbands' last names upon marriage, despite the formal freedom of women to retain their names and of men to adopt their wives 'last names. This Article explores how the question of "naming marriage " concerns the outer, gendered boundaries of marriage, while "marital naming" constructs the category of marriage as internally gendered. Traditional naming practices work together to define marriage as gender hierarchical.

This Article ultimately considers the potential for these two forms of naming to facilitate the transformation of marriage into a less gendered institution.