4

This is inspired by another question: Is Elon Musk's child name valid in California?

The accepted answer quotes the a handbook from California Department of Public Health, Vital Records, p. 112:

The form must be completed using the 26 alphabetical characters of the English language with appropriate punctuation, if necessary.

No pictographs (), ideograms (), diacritical marks (è, ñ, ē, ç), or extraneous entries are allowed.

In comments it is mentioned that this causes problems for the large Spanish population, among others.

So, I wonder, has anybody taken this to court? If so, what was the result?

The title says "anybody else" because I am not interested in Elon Musk, but in cases that can form precedent for his possible lawsuit.

Stig Hemmer
  • 281
  • 2
  • 4

1 Answers1

2

Federal law was amended on this matter to permit the inclusion of apostrophes in recognition of the large number of Irish immigrants with names including that specific character — until then merely dashes were allowed.

The government does not have a duty imposed on it by the U.S. Constitution. The other foundation that would bind the U.S., and all state governments, would be self-executing treaties. The International Covenant on Civil and Political Rights provides a unified legal framework for many civil rights which, in Article 24(2), provides that

“[e]very child shall be registered immediately after birth and shall have a name”

which, for the purposes of this treaty, arguably should mean that that name shall be recognized by all signatories. This could provide as fertile ground for case law to arise out of for the recognition of, for e.g., diacritic marks or other characters common in non-U.S. names. Even though the U.S. is a signatory to this treaty, and the Senate ratified it in 1992, 16 years after it came into force, it did so by declaring reservations including that "the provisions of Article 1 through 27 of the Covenant are not self-executing" specifically designed to prevent its enforcement in the United States, and to prevent anyone to sue thereunder.

In these regards, the Wikipedia article on the matter cites "Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding" by John C. Yoo and states:

“As a reservation that is "incompatible with the object and purpose" of a treaty is void as a matter of the Vienna Convention on the Law of Treaties and international law, there is some issue as to whether the non-self-execution declaration is even legal under domestic law”

However, this argument would be found moot by the U.S. Supreme Court as the U.S. also has failed to ratify and enact legislation for the enforcement of the Vienna Convention of the Law of Treaties, or as it is often referred to "the treaty of the treaties".

For this reason, it is highly doubtful that a suit for states or the federal government failing to recognize or use other than 26 letters, dashes and apostrophes any other letters would be successful absent specific legislation setting forth such a duty on a state or the U.S..

Might be worth noting that California tried to pass a bill, but eventually shied away seeing the bill of ~$10M it would have had to foot to change its computer systems to permit for the use of marks and characters beyond the 26 letters and 2 characters.

Conclusively, even if one did, it would be, by all indication, a moot case to make based on the authorities California courts recognize to be bound by.

I also could not find a single case that reached any appellate courts with binding authority in California.

The only state...

I found one state to have enacted legislation permitting Latin diacritic marks being, maybe somewhat surprisingly, Texas:

(a) In this section, "diacritical mark" means a mark used in Latin script to change the sound of a letter to which it is added or used to distinguish the meaning of the word in which the letter appears. The term includes accents, tildes, graves, umlauts, and cedillas.

(b) The department shall ensure that an original or renewal driver's license or personal identification certificate issued under this chapter properly records any diacritical mark used in a person's name. (Tex. Transp. Code § 521.127)

kisspuska
  • 3,924
  • 8
  • 43
  • You overlook the state constitution of California itself. Which still may permit this, but it's relevant. – zibadawa timmy Feb 07 '22 at 09:04
  • It is not a matter of "permi[ssion]"; it is a matter of whether a duty is imposed on a state or the federal government. Since even though international law would provide for such a duty imposed on the U.S., including all of its states, and establishing an individual right to an internationally recognized name, the U.S. does not under take that duty; the U.S. Constitution does neither, and neither does the California Constitution (if it did, California Congress would never have had to even consider passing the cited bill). Each of these foundational sources of law permit, neither […] – kisspuska Feb 07 '22 at 09:09
  • Legislatures pass unconstitutional laws all the damn time. That's how the very concept of 'unconstitutional law' exists. – zibadawa timmy Feb 07 '22 at 09:11
  • […] force and effect obligates the governments or establishes a right to for individuals. (Of course, on the administrative level, it is not "permitted", but it's not like the governor couldn't order it — he likely could) – kisspuska Feb 07 '22 at 09:12
  • I think you are missing the point: There would be nothing "unconstitutional" about enacted such legislation that would require state and/or federal governments to require the proper recording of names with diacritic marks, special characters or non-standard Latin letters like the German ß or the Icelandic ð. That's the reason Texas could pass its own law. The President would probably be bound by the U.S. Code, and the same might be true for the governor of California for the states laws; but new bills could be passed. In fact, the U.S. very well should pass law as a "party" to the ICCPR. – kisspuska Feb 07 '22 at 09:18
  • With reference to @zibadawatimmy's comment, a duty imposed by a constitution on the state may be described as "permitting" or "prohibiting" some action on the part of the state or even on the part of a person. For example, the state is permitted by the fourth amendment to search people without warrant under certain circumstances, and you and I are permitted by the first amendment to express opinions about the government. – phoog Feb 07 '22 at 11:48
  • As to "arguably should mean that that name shall be recognized by all signatories": California doesn't necessarily fail to recognize names with diacritic marks registered elsewhere; it just refuses to accept names with such marks when registering births in California. That isn't inconsistent with "shall have a name." Furthermore, requiring every signatory to accept every possible rendering of every name is a slippery slope. It's nice that Texas accepts, for example, María and (?) Antônio, but it does not accept Юрий or فَاطِمَة, nor do I think it should. Where do you draw the line? – phoog Feb 07 '22 at 12:07
  • @phoog seems like your 1st one misunderstands their comment and my replies, and argues about a point they didn’t make, is not relevant here and I never argued. 2nd one: a reasonable construction may very well be found inconsistent w/ the omission of diacritics because the purpose of this treaty is to provide individual international civil & political rights. A reasonable line doesn’t seem to be very difficult to be drawn, there are spelling regulations in European countries where Latin-alphabet names are required to be written with all diacritic marks, including special letters & characters. – kisspuska Feb 07 '22 at 17:21
  • @kisspuska my first comment was directed at your distinction between "permission" and "duty," which is unconvincing, but secondary. As to spelling regulations in European countries, can you name such a country? What would they make there of someone like Christian Pulisic? Would they require him to spell his name as Pulišić even though he was born and raised in the US and therefore spells it Pulisic instead? I know that the country isn't Switzerland because I live in Switzerland and I have found that the authorities don't generally know how to handle the letter ć. – phoog Feb 07 '22 at 18:15
  • @phoog I could only find one for you that implies a rule change in Hungary in this matter about 7 or more years ago:

    "15. When classifying the alphabetical order, the old Hungarian and foreign letters [including foreign diacritic marks] in old Hungarian surnames and foreign words and proper names are treated slightly differently from the usual." (The Rules of Proper Writing of the Hungarian Language)

    Journalists are now required in articles to properly use the "foreign letters"; omission may, in certain circumstances, allow for a cause of action, ie. if intended to annoy or discriminate

     – kisspuska Feb 07 '22 at 20:02
  • @phoog "Would they require him to spell his name as Pulišić even though he was born and raised in the US and therefore spells it Pulisic instead?" This is a moot point. He could certainly demand that his name be rectified per brith certificates showing that was the proper spelling of their names, but if that is how they identify, no one would compel them to change it, if not for other reason, since most countries permit for name changes. The conversation starts to poor into what and how should be regulated far beyond the scope of law.SE; I recommend you ask those questions on politics.SE. – kisspuska Feb 07 '22 at 20:06
  • @phoog There is nothing else to be said about your first remarks. – kisspuska Feb 07 '22 at 20:06