Henne v. Wright
904 F.2d 1208 (1990)

  • Debra and Robert were in the middle of a divorce. While the paperwork was being filled out, she met Gary.
  • Gary got Debra pregnant. She had a baby named Alicia. Although Gary was the father, the registrar would not allow Alicia’s birth certificate to have Gary’s last name.
    • Under Nebraska State law, a child born into wedlock must have the mother’s husband’s last name (Robert’s).
      • In most States, there is a presumption of paternity, meaning that if a couple is still married, any children are presumed to be the child of the husband.
        • In some States this presumption is irrebutable!
  • Debra gave in and gave Alicia Robert’s last name. However, she left the ‘father’s name’ birth certificate blank. Later, she applied to have Alicia’s birth certificate amended to list Gary as the father, but the Registrar denied the request.
  • In a totally separate case, Linda (who was single) had a baby with Ray. Linda wanted the baby’s last name to be ‘McKenzie’, just because she liked it. The Registrar denied the request.
    • Neither Linda nor Ray was related to anyone with the last name McKenzie, but she had already named her other two kids McKenzie.
  • Debra sued the Nebraska Dept. of Health (Wright), and the Dept. of Vital Statistics, claiming that the restrictions on names were unconstitutional.
    • Linda intervened and joined the lawsuit.
  • The Trial Courts found for Debra and Linda and found the Nebraska Statute (Neb.Rev.Stat. §71-640.01) unconstitutional. Nebraska appealed.
    • The Trial Court found that the restrictions were a violation of the right to privacy in the 14th Amendment.
  • The Appellate Court reversed.
    • The Appellate Court found that the courts should apply a rational basis test to determine the constitutionality of the Statute.
      • The Court found that there was no fundamental right to name your kids whatever you wanted. Therefore the rational basis standard was the appropriate level of review (as opposed to strict scrutiny).
        • The Court noted that there is no historical tradition of allowing parents to choose their child’s last name.
    • The Court found that there was a rational basis for the Statute.
      • The Statute promotes the welfare of children by giving them familial connections, it insures that the names of citizens are not appropriated for misleading purposes (such as false implication of paternity), and it makes for inexpensive and efficient record keeping.
  • In a dissent, it was argued that people have a 1st Amendment right to free speech to name their child whatever they want. In addition, it has been established parents do have a fundamental right to raise their child as they see fit. The dissent felt that naming the child should be considered part of raising the child.
    • The dissent asked why if women have a fundamental right to not have children in the first place, how could they not have a right to name them?
  • Debra could have gotten a judicial determination of paternity, proving that Gary was the father. Then she could have gotten Alicia’s birth certificate changed. Also, Linda could have had her name legally changed to ‘McKenzie’ and then all of her children’s names could be changed to match.