One of the most comprehensive cases on the constitutional right to choose a name for your own child without government interference came from the 8th Circuit Court of Appeals, in a 1989 appeal of a Nebraska law barring parents from selecting a surname other than their own for their child. The two judges in the majority found no fundamental constitutional right to select a child’s name. The dissenter, Judge Richard Sheppard Arnold, wrote that parents enjoy a fundamental right to name their own children, finding such a right, “if anything, more personal and intimate, less likely to affect people outside the family” and that “there is something sacred about a name. It is our own business, not the government’s.”
Putting aside Judge Ballew’s wildly inappropriate religious rationale for demanding that baby Messiah be renamed, there is nevertheless a legitimate question about whether Americans are too speech- and parental rights-protective when it comes to truly abusive baby names. At least in some cases — Adolf Hitler Campbell and his sisters being prominent examples — might it not be in the state’s interest to step in and afford a defenseless baby a fighting chance to not someday be beat up on the playground? The New Zealand judge who ordered that Talula Does The Hula From Hawaii have her name changed memorably wrote that such a name “makes a fool of the child and sets her up with a social disability and handicap.” Professor Larson cites numerous studies concluding that people with unusual first names show “more severe personality disturbance than those with common names” and reporting that having weird first names correlates to higher instances of delinquency in youth.
Is there some role for American courts to play in policing the very worst baby names? One legal scholar cited in Larson’s article has put forth statutory language providing that “Parents may give a child any given names on which they agree as long as the names do not defraud or otherwise operate to create injustice.” Which might leave “Adolf Hitler” or “Acne Fountain” as acceptable. Professor Larson suggests language that would allow the state to reject a proposed name if “there is an overwhelming likelihood that the name will pose serious and lasting harm to the child’s emotional wellbeing and social development,” with the right to immediate review in a court. It’s an intriguing place to start the discussion. But it’s also precisely what Judge Ballew was claiming she was doing when she changed “Messiah” to “Martin” last week, explaining that “it could put him at odds with a lot of people.”
Dahlia Lithwick writes about the courts and the law for Slate.