by Sherri Abendroth
This true story happened in the year 2002: a baby girl was born and her parents wanted to name her Lucía. They decided on this classic Latin name meaning 'light' to honor the mother's deceased grandmother, anticipating no bureaucratic obstructions.
How unpleasantly surprised the couple was when the name was refused by government authorities. The response from the state was that "Lucía" was "legally unrecordable" and therefore not acceptable as a name. The parents were recommended to name their daughter Lucia, without the accented í, in order to be deemed acceptable by the government gatekeepers, which unfortunately would have altered the pronunciation completely. Taking the absolute freedom of naming a child for granted, one would think this story took place in one of the countries run by a totalitarian regime, such as Russia or China, infamous for government impositions on people's liberties. Perhaps the European Union countries would come to mind, where governments routinely curb people's freedom in order to provide 'general welfare', or so they say. In either case, my fellow Americans, the guess would be wrong. The story originates in the United States of America - the cradle of freedom and independence, where the majority of population mistakenly believes that when it comes to raising their own children, their constitutional liberties are still intact.
Governments all over the world believe that they have the right to interfere in people's private decisions. However, these encroachments on personal liberty can usually be attributed to the self-preserving interests of state power and influence. One might not support gun censorship, but it's understandable why that serves the interest of power-hungry officials seeking to inflict their will amongst free people. States love to protect their interests and gain wealth at the expense of their people's rights. But what is there in a baby name? Why would this personal decision have such great appeal to a statist bureaucrat? On what constitutional grounds does government have the right to regulate the parents' freedom to name their child at all? The Founding Fathers didn't claim it, why would it be a requisite now? The reality is that restrictions on naming a child are practically universal throughout the world. It's not just the case of countries such as China, where one would not expect even the most basic human rights to be respected, so the reality of having to choose from 13,000 Chinese characters, approved by the Chinese government, as opposed to 70,000 existing characters, is really just the final nail in the coffin. Most of the government restrictions on baby naming come from countries that are otherwise considered democratic.
In Portugal, for example, the gender must be evident from the name (sorry Ashley and Pat). Similarly in Germany, the sex of the child must be recognizable beyond doubt and using names of objects and products is prohibited (goodbye Siri). In Spain and France, the name cannot be "out of the ordinary or inappropriate"; the vagueness of these adjectives is extremely striking. In New Zealand, Iceland, Denmark and Sweden, a child cannot be named anything that might result "offensive or causing discomfort to the child", which, of course, is on the official authorities to determine. A former Norwegian law banned a surname from being used as a given name and foreign religious names such as Jesus were prohibited as well. Argentina doesn't even allow names that could be considered "politically tendentious", fancy how convenient for the powers that is.
This leads us back to the problem of Lucía introduced at the beginning of this article. According to the California Office of Vital Records, a parent can only choose from the 26 alphabetical characters of the English language and with the exception of apostrophes, hyphens, and dashes, diacritical marks are not permissible. Not only is this a severe violation of the fundamental right of parents to name their child but it is also utterly nonsensical. The State of California officially uses diacritical marks already, as can be seen in the examples of El Capita'n State Beach Park or La Purísima Mission State Historic Park, both of which the official names of California State Parks stated by the California Department of Parks and Recreation on their official parks.ca.gov website. The fact that the state officials can use the diacritics as they please but they would disallow the law-abiding citizens to use them in their names or surnames is yet another example of government's priviledged hypocrisy. Just as larceny gets proper punishment between citizens, while the government has carte blanche to steal with impunity in the form of taxes. And similar logic applies to the current gun control dispute. Statists demand orderly citizens can't own assault rifles, but there is no such limitation imposed on enforcing employees of the state.
What's worse is that all the restrictive countries do not offer much in the way of discourse for parents to petition these laws. There's usually the same pattern followed in the process: the government issues a list of given names, or makes it accessible on the Internet. Should you choose from the list, there will be no further obstructions in the naming process (considering that the gender recognition is maintained, etc.). If on the other hand you do wish to name your child differently, it can be, and commonly is, denied by the official authorities, in which case you do have the right to appeal to court. That of course brings in unexpected 'treats' in the form paying fees, hiring an attorney, requesting time off work, etc. Ultimately, the courts have their own 'naming experts' who cast the final judgment. No jury of peers, just the determination of one employee of the State. And if it's not in your favor, there is de facto nothing to be done about it as the verdict is irrevocable.
Retracing the key questions above, does government have any constitutional authority to regulate baby names at all?
According to the research paper Naming Baby: The Constitutional Dimensions of Parental Naming Rights, written by Carlton F.W. Larson in January 2011, parents have a fundamental constitutional right to name their children by virtue of the First Amendment and the Due Process Clause of the Fourteenth Amendment. And because these rights are fundamental, restrictions on these rights have to pass strict scrutiny, i.e. they must be justified by a compelling governmental interest, they must be narrowly tailored and they must be the least restrictive means to achieve governmental interest. In his conclusions, Larson suggests that some of the laws and restrictions currently employed are unconstitutional and the state has no right to invoke them.
Naming restrictions go as far as the late 19th century, following the first introduction of birth certificates. It was the state of Massachusetts that first required birth registration and government control over parental naming permeated immensely thereafter. As it stands today, consider the following a very brief summary of existing naming laws applied, to various extents, throughout the US (by no means exhaustive from state to state):
1. Requirement of at least two names
2. Restrictions of length
3. Certain surname restrictions
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