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October 2, 1981

Colleen Ann Domitilla O'BRIEN, et al., Plaintiffs,
Dr. Hugh H. TILSON, etc., et al., Defendants

The opinion of the court was delivered by: MERHIGE


Plaintiffs, three married couples and an infant child of each, bring this action against Dr. Hugh Tilson, Registrar of Vital Statistics for the State of North Carolina, and other officials of the State of North Carolina, challenging the constitutionality of North Carolina General Statute § 130-50(e), which requires that children born of married parents be given their father's surname.

 The cause of action arises under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 1983. Jurisdiction vests pursuant to 28 U.S.C. §§ 1343(3) and 2201. The matter, which is before the Court on cross motions for summary judgment, has been fully briefed, argued, and is ripe for disposition.

 Plaintiffs Colleen Ann Domitilla O'Brien and Arne Reece Erickson, a married couple, wished to name their son, born in North Carolina, in accordance with the Swedish custom, by combining the father's given name, Arne, with the suffix "son", to make Arneson. Plaintiffs Cheri Casper and John Baz-Dresh sought to name their daughter, who was born in North Carolina, in the Spanish custom, by giving the child the hyphenated combination of both parent's surnames. Plaintiffs Karen Moore and Roger Pleasant also wished to give their child, also born in North Carolina, a surname composed of their hyphenated surnames. Each of the plaintiff parents filled out birth certificates giving their child the chosen surname, but in each case, the Vital Records Branch of the North Carolina Department of Human Resources sent the parents a birth certificate listing the father's surname as the child's.

 State law charges defendant Tilson with the responsibility of recording and preserving records of all vital events that occur within the state. Pursuant to N.C.G.S. § 130-36 et seq., the hospital administrator or his designate, usually a clerk or nurse, is required to prepare the birth certificate and file it with the local registrar within five days of birth. The local registrar checks the certificate, prepares copies for the local registrar of deeds and the local health department, and forwards it to the central office of the Vital Records branch. There, information from the certificates is entered in a computer system, and the certificates are permanently bound and stored.

 Plaintiffs contend that § 130-50(e) violates their constitutional rights to privacy, due process, and equal protection. Insofar as it implicates what plaintiffs claim to be fundamental interests, they contend that it can be constitutionally justified only upon a showing of a compelling state interest. Alternatively, they contend that the statute is constitutionally infirm even under a less rigorous standard.

 The Court has no difficulty in concluding that the statute does implicate important constitutional interests. It impinges upon decisions affecting family life, procreation, and child rearing; areas of human experience which the Supreme Court has long held must be accorded special protection. Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1924); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). In this most private of realms, there is a "right to be let alone", a right to make decisions free of the coercive power of government. *fn1" The invasion of privacy and individual expression here involved, contra to what defendants appear to suggest, is far from de minimus : as Judge King, in Jech v. Burch, 466 F. Supp. 714 (D.Hawaii 1979), noted in striking down a state statute less restrictive of parental decision-making than that before the Court,

The common experience of mankind, whether parents, agonizing over a name for their newborn child, or grandparents trying to participate in the naming process, or grown children living with the names their parents gave them, points up the universal importance to each individual of his own very personal label.

 466 F. Supp. at 719.

 In addition to the privacy interests there is the equal protection issue raised by the fact that the law creates a classification based on gender, in that it permits the child to bear the father's name, but not the mother's. Further, the statutory scheme distinguishes between legitimate children, who must bear the father's name, and illegitimate children, who may be given either parent's name.

 The Court need not decide whether the state must show a compelling state interest or some lesser interest to justify N.C.G.S. § 130-50(e), because even under the most relaxed of standards, requiring only a showing that the statute can reasonably be viewed as promoting some legitimate state interest, the statute proves to be patently defective.

 The defendant asserts two state purposes: the necessity for accurate and timely recording of births, and the need to screen newborns for health problems. Defendant contends that if parents were permitted to name their children as they choose, these purposes either could not be adequately served, or could be served only with increased administrative difficulty and expense. There can be no doubt that the purposes asserted by defendant are legitimate matters of concern to the state. However, the Court finds that allowing parental choice would in no way undermine defendant's ability to perform his duties or to promote the asserted interests.

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