Matter of Nawadiuko

[*1] Matter of Nawadiuko 2012 NY Slip Op 51931(U) Decided on October 1, 2012 Civil Court Of The City Of New York, Richmond County Straniere, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 1, 2012
Civil Court of the City of New York, Richmond County

In the Matter of the Application of Nawadiuko, For Leave to Change His/Her/Their Name(s) to ChristIsKing



NC 103/12

Philip S. Straniere, J.

Currently before the court is an application by the Nwadiuko family to change their last names from Nwadiuko to "ChristIsKing"-one word with capital a C, I & K as the start of each internal word. The members of the family making the application are the father, the mother, a male child over the age of 18 and a female child under the age of 18 but over the age of 15. A hearing was held in regard to the application on July 30, 2012. The applicants appeared without the assistance of counsel.

At the hearing each applicant articulated a deep religious motivation for the requested name change.

It should be noted that in 2006 the father made an application to this court to change his then minor son's name from Jeremy to "JesusIsLord"- also one word containing the internal capital letters (Index #NC 500143/07). In a written decision denying that application as not being in the best interest of the minor child, the court noted that there had been two prior applications for that relief. One earlier in 2006 in Civil Court (Index # NC 500011/06) and the other in North Carolina both of which had denied the name change. In denying that application this court noted "It does not appear that any of the judges doubt Jeremy's sincerity, intelligence and commitment to his beliefs. All of us are concerned as what would be the reaction to his "new name" by other people who may either be offended or intolerant, and that this would potentially place him in some danger and therefore not be in his best interest."

Although this court concluded that decision by suggesting that Jeremy reapply when he became an adult, apparently that advice was ignored and at least one more attempt was made as Jeremy was successful in having his name changed to "JesusIsLord" in 2009 as indicated by a new birth certificate issued in Virginia. At the current hearing JesusIsLord stated he believed the application was successful in New Jersey, although he did not seem too sure of that. It should be noted that his current application does not indicate that his first name had already been changed nor the jurisdiction where that application was granted. [*2]

Apparently the name of the minor child was changed to "Rejoice" as she received a new Virginia birth certificate in 1999 although her date of birth was 1996. Like her brother's petition hers does not reflect the jurisdiction which granted the application.

The parent petitioners were born in Nigeria and came to the United States in 1987. In 1996 they founded the "Christ Is Lord Evangelistic Association" and began a full time ministry. In October 2009 the father was arrested on the Staten Island Ferry while preaching to commuters when he refused to obey a police officer's request to clear an aisle. The mother was also arrested at that time for failing to obey a request to move. Both parents subsequently pleaded guilty to charges arising from that incident. Only the father has indicated the conviction on his application, the mother did not.

A. Right to Change of Name:

There exists two recognized methods for an individual to change his or her name. "Under the common law, a person may change his or her name at will absent fraud, misrepresentation or interference with the rights of others" [Eisenberg v Strasser, 1 Misc 3d 299, 302 (2003) see also Smith v United States Casualty Co., 197 NY 420 (1910)]. Changing a name under the common law can be accomplished without resorting to a judicial proceeding and the new name can become effective through that person's consistent usage or habit [Matter of Halligan, 46 AD2d 170 (1974)]. "Anybody may change their names without asking the approval of the court at any time and, provided fraud was not the inspiration for the act, the new name will be as effectively assumed and recognized as it its use had been provided for by a court order" [Application of Lipschutz, 178 Misc 113 (1941)].

In addition to a person's common law right to change their name, New York has enacted a statute which enables a person to file a petition to the county, supreme or civil court where the petitioner resides for an order changing his or her name [New York Civil Rights Law §60 et seq.]. The Civil Rights Law "provides the necessary directions for effectuating a court-ordered name change as an alternative procedure to the one under common law; they neither diminish nor abrogate a person's common law right to effectuate a name change....The statutory procedure differs only in the speed and certainty of the change" [Eisenberg v Strasser, p.303]. "Primarily, the court is charged with examining whether the name sought to be assumed will be a source of or instrumentality for fraud, evasion or interference with the rights of others....The court must also consider whether the proposed name is of such a nature as to confuse or mislead the general public" [In the Matter of Thompson, 82 Misc 2d 460 (1975)].

These two methods still exist and the avenue of a common law name change remains available to the petitioners without resorting to the courts. This being said, in post 9-11 America, this right may be more available in theory than in practice. The court system has had an appreciable increase in the number of name change filings in great part triggered by the post 9-11 need for security. Security concerns now require consistency between a person's name on a birth certificate, driver's license, passport, marriage licenses, social security cards and other common everyday forms of identification issued by various levels of government. As a practical matter [*3]this need for conformity has reduced the adoption of a new name through common law usage and practice to an almost useless exercise requiring the courts to intervene to conform discrepancies between all of these different documents rather than allowing a person to adopt a new name solely through custom and habit. Perhaps this issue should be addressed by the legislature.

B. Limitations on Statutory Name Changes:

"A name-change request made pursuant to statute gives the state the authority to place certain limits on the name by permitting the court to refuse the name when the applicant has an improper motive, when the possibility of fraud on the public, and when the choice of name is bizarre, unduly lengthy, ridiculous, or offensive to common decency and good taste" [In the Matter of the Petition of Variable, 190 P.3d 354, 356 (2008)[FN1]]. In that case the court noted that a petitioner may use his or her common law right to change his or her name to any name at all, utilize it as part of his or her right to free speech and a "petitioner may make a political statement by changing his name, but once he seeks the state's imprimatur, he is subject to the court's discretion in granting the government's approval of the name...one has a common law right to assume any name, and a right to engage in a social experiment, but one does not have a right to require the state to participate in the experiment" [ In the Matter of the Petition of Variable, p. 356].

Similarly, in Lee v Ventura County Superior Court, 9 Cal. App. 4th 510 ( 1992)[FN2] the court dealt with the issue of a name change which included a surname which would be "commonly considered a racial epithet" [Lee, p. 513] and might rise to the level of a "fighting word." The court noted "(a)ppellant has the common law right to use whatever name he chooses. He may conduct whatever social experiment he chooses. However, he has no statutory right to require the State of California to participate therein" [Lee, p. 513]. The court went on to find "no person has a statutory right to officially change his or her name to a name universally recognized as being offensive....Were we to give our imprimatur to appellant's request, such might be construed as encouraging or sanctioning a racial epithet, translating to state action' promoting racial disharmony" [Lee, p. 514].

In Cohen v California, 403 US 15, 20 (1971), the Supreme Court summarized the "few categories of instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed." The three categories set forth were "obscenity," which in the name change context was addressed above by In the Matter of the Petition of Variable; "fighting words" in a name change containing personally abusive epithets such as discussed above in Lee; and situations where "expression was thrust upon unwilling or unsuspecting viewers, and that the [*4]State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure" to the actors form of protest.

The application in this case to have the family name changed to "ChristIsKing" falls into this third category. It will result in person's not holding petitioners' religious beliefs to proclaim them when merely engaging in the common everyday act of calling another person by his or her name.

The problem with petitioners' application can best be summarized by the concurring opinion of Mr. Justice Burton in Joseph Burstyn Inc. v Wilson, 343 US 495, 530 (1952) where he noted: In Cantwell v State of Connecticut, 310 US 296, 310...., Mr. Justice Roberts speaking for the whole Court said: In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor.' Conduct and beliefs dear to one may seem the rankest sacrilege' to another. A few examples suffice to show the difficulties facing a conscientious censor or motion picture producer or distributor in determining what the New York statute condemns as sacrilegious. A motion picture portraying Christ as divine-for example, a movie showing medieval Church art-would offend the religious opinions of the members of several Protestant denominations who do not believe in the Trinity, as well as those of a non-Christian faith. Conversely, one showing Christ as merely an ethical teacher could not but offend millions of Christians of many denominations. Which is sacrilegious'? The doctrine of transubstantiation, and the veneration of relics or particular stone and wood embodiments of saints or divinity, both sacred to Catholics, are offensive to a great many Protestants, and therefore for them sacrilegious in the view of the New York court. Is a picture treating either subject, whether sympathetically, unsympathetically, or neutrally, sacrilegious'? It is not a sufficient answer to say that sacrilegious' is definite, because all subjects that in any way might be interpreted as offending the religious beliefs of any one of 300 sects of the United States are banned in New York.

Although Burstyn dealt with the constitutionality of New York's censorship law, which was declared unconstitutional by that case, the point being made about trying to set an acceptable standard for censorship in a multi-religious society such as exists in the United States, applies to this name change application. The petitioners' are seeking to have the court change their name by the statutory rather than the common law process to one that has personal religious meaning to them and which may or may not be acceptable to the vast majority Americans and would require third parties to make a religious statement when just calling petitioners' names.

To permit this name change would be placing unwitting members of the public including public servants in the position of having to proclaim petitioners' religious beliefs which may or may not be in agreement with that person's own equally strongly held but different beliefs. [*5]

For instance, a calendar call in the courthouse would require the clerk to shout out "JesusIsLord ChristIsKing" or "Rejoice ChristIsKing." Other litigants would not necessarily know whether the clerk was reading the calendar or making some religious statement in violation of the separation of church and state. A similar situation would occur in the classroom setting. Not only is the speaker being forced to say something which might be repugnant to the speaker but the general public would be subjected to this unwanted intrusion of the petitioners' religious beliefs. What would be people's reaction to hear the petitioners' being paged at an airport or some other public event? Common sense tells us that more people call us by our name on a daily basis than we refer to ourselves. The number of people who refer to themselves in the third person on a regular basis is limited.

There are numerous court decisions holding what the vast majority of Americans would believe to be "inoffensive" as being a violation of the First Amendment as an intrusion on individuals freedom of religion and belief. Having the Ten Commandments in a public place has been held to be state action promoting religion in violation of the First Amendment [McCreary County Ky., v American Civil Liberties Union of Ky., 545 US 844 (2005)[FN3]]. As has having an invocation at a public school graduation [Lee v Weisman, 505 US 577 (1992)] and permitting students to pray before public school sporting events [ Santa Fe Independent School District v Doe, 530 US 290 (2000)]. In all of these cases, the holdings were that the government was not maintaining neutrality and was promoting religion. So likewise, permitting the petitioners to use the statutory process to effectuate a name change would involve the same prohibited entanglement especially because they could avoid the potentially offensive conduct by employing the equally available legally recognized common law right to achieve that purpose.

What petitioners are seeking here is in many ways beyond the First Amendment issues of these and other cases. Petitioners will require persons who do not have the same religious beliefs as they do to be compelled to recite as a person's name a statement of religious belief. In the United States we have the freedom of expression and the freedom to believe or not believe what we want, but we do not have the right to compel others to subscribe to our own firmly held beliefs. In fact, although we are free to believe what we want and to practice any religion we [*6]choose, though very limited in circumstances, there are governmental restrictions on the practice of one's religion [Employment Division Dept. of Human Resources of Oregon v Smith, 494 US 872 (1990); See also Reynolds v United States, 98 US 145 (1879), which outlawed polygamy].

At the hearing the court inquired as what it should do should a devil worshiper seek to have his name changed to "SatanIsLord" and "TheDevilIsKing?" The petitioners' response was to the effect as to why would anyone want to do that? Indicating that they believed that the name they sought was a universally recognized positive religious statement that all persons should embrace. Their reaction showed an inability to recognize that many people would not only not be comfortable reciting the petitioners' proposed name but that in doing so would be violating that person's religious or lack of religious beliefs.

It should be pointed out that a court in the District of Columbia used its discretion to deny an application to change a name to "Jesus Christ." They noted that "(a)llowing a name change to Jesus Christ could serve to both offend people and incite violence and protest" and that it had the "inherent power...to prevent the name revered by a third of the world's population" to satisfy the vanity of an individual complainant [In re Phillips, 2003 WL 21384741 (DC Super)]. Other courts, however, have allowed people to change their name to Jesus Christ.

C. Cultural Argument:

The adult petitioners argue that their initial inability to find a court to change their son's name to JesusIsLord reflected a cultural prejudice of American civilization against the name "Jesus." An argument that they raised again in this petition. The adult petitioners stated that in their native country of Nigeria there was wider acceptance of religiously based names and that there is in fact a word in their native language which would be the equivalent of "ChristIsKing" and that is "Chibueze." Petitioners pointed out many commonly accepted American names have religious origins. In the "JesusIsLord" application the court agreed and on its own investigated the origins of common first names and easily identified forty-nine with Hebrew, Greek, Latin, Anglo-Saxon or Teutonic origins.

The court even recalled that when Jesus Alou was called to the major leagues by the San Francisco Giants, broadcasters were uncomfortable calling him Jesus and referred to him as "Jay Alou" not recognizing that Jesus was a common name in Hispanic countries. Fortunately this is no longer a problem.

A review of those names however, reveals a significant difference between their origin and what the petitioners' are advocating. Almost all of these names, most of which have "El or el" in them, a word which in Hebrew refers to "God,"or contain words that are accepted as the equivalent of "God" and both of which are modified by other words which describe what are accepted as the attributes of "God." Just about every culture throughout history has had some concept of "God" or "gods." What petitioners are advocating is a name that is a statement that a particular person is "Lord" or is the "King." This is a position which is not only offensive to [*7]persons who are not Christians [FN4] but also to those who look to God a being gender neutral and not a male figure.

Further in support of the contention that petitioners are seeking to advance their own interpretation of Jesus of Nazareth, thereby requiring a denial of their request because it has the potential to incite anger in third parties, is the question of whether the historical/theological Jesus ever proclaimed himself as "Lord" or that he was "the Christ" as in "the one and only Messiah" and that as "the Christ" he was the "King." Or were these attributes given to him by his followers and interpreters of his teachings?[FN5]

There is another issue petitioners' proposed name raises and that is, would a person announcing it be committing "blasphemy?" The adult petitioners are ministers and travel to preach their version of Christianity. Thereby subjecting them and their activities to the laws of other states or countries. Six states still have blasphemy laws on the books. New York's fell in 1952 with the above cited decision in Joseph Burstyn Inc. v Wilson. Although a prosecution for blasphemy is extremely unlikely in this day and age, many of the statutes use the term "contumeliously reproaching" God, Jesus Christ, the Holy Ghost, or the holy scriptures. Could petitioners' actions be found by some other equally religious persons be classified as being "contumelious?" [*8]

At the hearing the court asked the petitioners what would happen if they did something that was viewed as being unethical or not in the teachings of Jesus, would they not be demeaning Jesus' name and weakening the validity of their message? The adult child indicated he wanted to play basketball in college. The court asked what would be the reaction if a newspaper headline read "JesusIsLord ChristIsKing" misses shot to cost team championship would that not reflect poorly on a name he took to honor. He and his family members believed it would not be a problem. This again leads to the conclusion that they are not thinking as to how other people will view their name.

Interesting the petitioner parents were both born in Nigeria. Twelve Nigerian states have adopted Sharia law which does recognize blasphemy as a crime and has some severe punishments depending on the level of the blasphemy. If petitioners returned to an area of Nigeria enforcing Sharia law, members of the Islamic faith calling petitioners' name in those areas might be committing blasphemy under Sharia law subjecting themselves to some degree of punishment. The other unanswered question is whether Nigeria even recognizes the order of a New York State court changing a person's name and whether a new birth certificate will be issued for the parents. If not, then there really is no need for a statutory name change application because all of their Nigerian issued documents would remain with their birth names and the parents would achieve the same result through the common law process.

Conclusion:

The easy response to any name change application is to just "grant" it. And I'm quite sure most of my colleagues would agree that so long as the person wants to change their name we should approve the petition as if this were some ministerial act. Unfortunately, the statute requires a judge to approve a name change undertaken by this method rather than through the common law. This means that factors other than the wants of a petitioner must be analyzed including how the proposed name will be viewed by third parties. At times a petitioner must be told your application is unacceptable [FN6].

If the legislature did not want judges to use their discretion the statute, would allow people to fill out an application, pay a fee and have the clerk issue a certificate of a new name as if it were a driver's license.

What else is troubling about this application is that the parents are the ones who earn a living preaching their version of Christianity. Yet they sought to change and did change their children's names from their birth names to Rejoice and JesusIsLord and not their own. If they are so committed to their mission why did they not change their own names rather than that of impressionable, dependent minors?

Based on the foregoing the petitioners' application is denied. They have a common law [*9]right to use whatever names they choose and are free to do so.

The foregoing constitutes the decision and order of the court.

Dated: October 1, 2012

Staten Island, NYHON. PHILIP S. STRANIERE

Judge, Civil Court

Footnotes

Footnote 1: Petitioner sought court approval to change his name to "Fuck Censorship!".

Footnote 2: Petitioner sought court approval to change his name to "Misteri Nigger" with the second "I" silent so as to be pronounced "Mister Nigger."

Footnote 3: In furtherance of this point is the recurring issue of posting the Ten Commandments in public buildings such as courthouses. Most people accepting the Judeo-Christian heritage of Western Civilization recognize the Ten Commandments as providing a moral compass for individuals and society and something that forms a basis of our legal system. Many people may express outrage over the decisions of courts compelling their removal from public places. Yet most people do not realize that the Jewish, Catholic and Protestant versions are not the same. They may express the same sentiments but the wording and order of the Commandments vary. This being the case, which one is to be displayed? Once one is accepted, it is the government promoting one religion over another and not maintaining its constitutionally mandated neutrality. And by the way, the Commandments appear in two different places in the Old Testament, Exodus and Deuteronomy and the wording of them in each of these books is different, so which one is to be used?

Footnote 4: Statistical data shows Christianity as the most prevalent world religion with about one-third of people subscribing to that faith. Christianity would also have to be broken down into its various components, Roman Catholicism, Eastern Orthodoxy and Protestantism being the most prevalent. In the United States almost 80% of the people identify themselves a Christian. Only 2% of the world population is classified as "atheist"-which tends to support Henny Youngman's statement that he was going to be an atheist but they don't have any holidays.

Footnote 5: Historically "Jesus" was a common name in Israel/Judea 2100 years ago. It is a form of Joshua and has the meaning of "Yahweh or Jehovah saves." It is probably the equivalent of someone named "John" who is referred to as "Jack." "Christ" is the Greek word for the "anointed" or the "anointed one." The Hebrew equivalent is the word "Messiah." Unfortunately too many people refer to the name "Jesus Christ" as if it were a first and last name like "John Smith" or "Philomena Bacciagalupe" or "Chaim Yankel." Thereby completely ignoring the theological significance of the name.

Even persons whose entire understanding of Jesus comes from sources like "Jesus Christ Superstar" are aware that any individual proclaiming himself or herself "Lord" or "King" in Roman times would find himself accused of a crime of seeking to undermine Roman authority. The Romans were apparently willing to tolerate local religions in the areas they conquered but were less than understanding of persons who advocated civil disobedience to Roman rule.

Footnote 6: This court has in the past denied applications to change a name to "Steffi Owned Slave" and another to "Black Cream Allah."