Brill v. Hedges, No. C-2-90-0701.

• Decision Date: 20 November 1991
• Docket Number: No. C-2-90-0701.
• Citation: 783 F. Supp. 340
• Parties: Michelle BRILL, et al., Plaintiffs, v. Kay HEDGES, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

783 F. Supp. 340

Michelle BRILL, et al., Plaintiffs, v. Kay HEDGES, et al., Defendants.

No. C-2-90-0701.

United States District Court, S.D. Ohio, E.D.

November 20, 1991.

Theodore Kern, Ohio State Legal Services Ass'n, Columbus, Ohio, Gary M. Smith, Southeastern Ohio Legal Services, New Philadelphia, Ohio, for plaintiffs.

Karin E. Wilson, Asst. Atty. Gen., State of Ohio Health and Human Services Section, Columbus, Ohio, Walter H. Chess, Jr., Asst. Pros. Atty., Zanesville, Ohio, for defendants.

OPINION AND ORDER

KINNEARY, Senior District Judge.

This matter comes before the Court to consider the cross motions of the parties for summary judgment. Fed.R.Civ.P. 56. On June 24, 1991, the Court issued an Opinion and Order that, while accepting the Defendants' contention that the statute at issue in this case is only subject to the lowest level of constitutional scrutiny, directed the parties to re-brief the issue of whether the statute is rationally related to any legitimate state interest. Both parties have now filed supplemental briefs with the Court.

FACTS

The undisputed facts in this case are as follows. Plaintiff Michelle Brill was divorced from her husband on July 8, 1988. Because her attorney had informed her that returning to her maiden name (Walton) would be a difficult and expensive process, she retained Brill as her surname.

On December 19, 1989, Brill gave birth to a son whom she named Stephen James Walton. It is not disputed that Brill was not married at the time of conception, at the time of birth, or any time in between. It is also not disputed that Stephen is not the son of Brill's former husband.

After the birth of Stephen, Brill applied for and obtained a Social Security card for her son issued under the surname Walton. However, when she attempted to record the birth of her son with the Zanesville-Muskingum County Health Department, she was informed that Ohio law required her to record her child's birth under her own current surname. Ohio Revised Code section 3705.09(F) provides:

If the mother of a child was married at the time of either conception or birth or between conception and birth, the child shall be registered in the surname designated by the mother....

If the mother was not married at the time of conception or birth or between conception and birth, the child shall be registered by the surname of the mother. The name of the father of such child shall also be inserted on the birth certificate if both the mother and the father sign the birth certificate as informants before the birth record is accepted for filing by the local registrar and in such a case the child may be registered by the surname of the father if the mother and father so designate....

Michelle Brill and her son filed this action — later certified as a class action — to obtain a "declaration from this Court that she has a constitutionally protected right to choose her son's name, a declaration that Stephen James Walton has a constitutionally protected right to be known by a surname associated with his family, and an order from this Court requiring defendants to accept registration of Stephen's birth under the surname Walton." The Plaintiffs also request that this Court declare section 3705.09(F) unconstitutional insofar as it restricts unmarried parents from choosing the surname under which they register their children, as it permits married parents to do.

On June 24, 1991, this Court held that while the right to name a child has considerable importance in our society, it does not rise to the level of a "fundamental right." Similarly, the Court found that the distinction between married and unmarried mothers does not involve a "suspect class." Thus, the statute must be upheld if it bears some reasonable relationship to a legitimate state interest. Based on the record before it, the Court was unable to make this determination, and it directed the parties to re-brief the issue with the standard of review in mind. Both parties have since provided the Court with supplemental briefs.

DISCUSSION

The burden upon a party seeking to overturn a legislative enactment for impinging upon a constitutionally-protected due process right, or irrationally discriminating between groups in violation of the equal protection clause, is an extremely heavy one.¹ When the legislation is economic or social in nature, as in this case, and neither a fundamental right nor a suspect class is involved, the level of scrutiny is rational basis review:

It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.

United States v. Fogarty, 692 F.2d 542, 547 (8th Cir.1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1434, 75 L.Ed.2d 792 (1983) (quoting Williamson v. Lee Optical, Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1954)). See also McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961) ("a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it"). Thus, states are not required to convince the courts of the correctness of their legislative judgments. Rather, "those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1978). In short, "the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines ..." New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1975); see also Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1980) ("Unless a statute employs a classification that is inherently invidious or that impinges on fundamental rights, areas in which the judiciary then has a duty to intervene in the democratic process, this Court properly exercises only a limited review power over Congress, the appropriate representative body through which the public makes democratic choices among alternative solutions to social and economic problems.").

In its original brief, the state identified three interests which it maintains are served by requiring that the child of an unwed mother be given the current surname of the mother. First, it claims that this requirement serves to ensure that there will be an identifiable legal connection between a child and his or her only legally identifiable parent. This is important, the state alleges, not only for maintaining an efficient and effective record keeping system, but also for verifying and documenting the genetic relationship between mother and child.

Second, the state alleges that the system assists in maintaining the traceability of the ancestral chain. This, the state claims, may assist in future detection of genetic disease and defect.

Third, the state maintains that the system promotes the preservation of family life. By requiring that an unmarried mother and her child maintain the same surname, the state alleges that both mother and child are identifiably bound as a family by society.

Upon re-briefing, rather than expand upon the interests already alleged — as this Court directed it to do — the state chose to rest its position on a different state interest: preventing unmarried mothers from raising an "improper presumption of paternity." Before the enactment of the statute, the state asserts:

unmarried mothers would select the surname of a man, such as a notable clergyman, as the name for their child. Frequently, this selection of a surname, other than the mothers sic own, was made in an effort to raise the presumption that the man was actually the biological father.

Defendants' Supplemental Brief, at 4.

With respect to the first interest asserted by the state — that the statute serves to maintain an identifiable legal connection between parent and child — the Court is rather skeptical. Initially, this Court is troubled by the language "identifiable legal connection." While the use of the term "legal" in this phrase suggests that it is intended to imply something more than the way the mother and child are viewed in their community, the state has not even attempted to define what a "legal connection" is, how it is created, and why it is an important state interest. Intuitively, it seems more likely that a "legal connection" between parent and child is entirely independent of the surnames associated with the mother and child.² Because the Certificate of Live Birth — which in this Court's view is what is intended by the phrase "identifiable legal connection" — only includes the maiden name of the mother and not her current surname, a legal connection is more likely to be established by allowing Michelle Brill to name her son Walton, since Michelle's maiden name of Walton will appear on the birth certificate and not her current surname of Brill.³

In its attempt to explain its interest in maintaining an "identifiable legal connection" between mother and child, the state has identified two underlying rationales for its argument. First, it argues that an identifiable legal interest is important in maintaining an efficient and effective recording system. Second, it argues that it is important in verifying and documenting the genetic relationship between mother and child.

With respect to the first rationale, this Court fails to understand how allowing an unwed mother to choose the surname of her child impairs the efficiency or effectiveness of the state's recording system. Given that married mothers can choose any name they wish, the state has clearly established a recording system that can effectively accommodate choice in its operation. Nowhere has the state even attempted to...