Unsung legal heroes: Kathleen Rose Harney and Joan Kessler; assistance from Ruth Bader Ginsburg

By Gretchen Schuldt

​When ​Kathleen Rose Harney married Joseph Michael Kruzel in 1971, she kept using her own name. And there the trouble began.

Her employer, Milwaukee Public Schools – Harney was a first-year art teacher – told her that she either had to use her husband's name or go to court and legally change her name to "Harney" if she wanted to add Joseph Kruzel to her health insurance policy.

The marriage, after all, meant that her name was no longer hers, according to her employer. MPS was not alone in that belief. Harney's wedding announcement in The Milwaukee Journal referred to her as "Mrs. Joseph Michael Kruzel" and the "former Miss Kathleen Rose Harney."

The Journal's wedding announcement

​Even Harney herself believed she gave up her name. 

"I didn't really want to," she said in an interview. "I thought you had to."

Harney went to court. She appeared before Milwaukee County Circuit Judge Ralph J. Podell in December 1972 and asked the judge for permission to use the name that was hers since birth and that she had used on her marriage certificate. Technically, she asked to "change" her name from one she had never even used.

"That's when things snowballed," said Harney, who now lives in Wauwatosa. 

She was called to the stand during the hearing she thought would be routine.

"All they asked is, 'What's your name and are you pregnant?'" she said. Then the judge told her to sit down, she said, and the men in the room discussed what her name should be.

The judge denied her request for the good of any future children she might have. Having parents with different names would be bad for the young ones, he said.

If two people getting married can't agree on a single name, he said, "it would be better for them, any children they may have, and society in general that they do not enter into the marriage relationship."

Podell also said that he "feels very strongly that family unity also requires that all members thereof bear the same legal name" and "this court feels she should carry her husband's name."

Harney said her lawyer told the judge he rather agreed with him.

The February 1973 ruling made the newspapers. "Maiden Name Plea Rejected By Court," the Journal reported.

"My in-laws saw it in the paper," Harney said. "It didn't go over well."

It took a while for her in-laws to speak to her again, she said. 

Attorney  Priscilla Ruth MacDougall, who specialized in women's issues, found out about the ruling  and contacted Harney. The naming precedent was bad and should not stand, MacDougall said. Would Harney consider an appeal?

"We just got married and we're buying furniture," Harney, then 22, told her. "We can't afford an attorney."

MacDougall said she and others would find the money. Harney appealed; the state Supreme Court accepted the case.

Harney's appellate lawyer was a rookie attorney named Joan Kessler, who took the case pro bono. 

"I was just young and out of school and what did I know?" said Kessler, who would later serve as U.S. attorney for the Eastern District of Wisconsin and a state appeals court judge.​

Attorney Joan Kessler, from a 1973 Milwaukee Journal story published about Harney's appeal.

​"Everyone was astounded" at Podell's decision," she said. It already was clear that a person's name was a matter of choice, she said. There simply was no law on the books requiring a woman to take her husband's name.

Kessler drafted a brief for the state Supreme Court. Since she was headed to New York for an American Bar Association meeting, she thought she would seek help from a more experienced lawyer – ACLU attorney Ruth Bader Ginsburg, who filed an amicus brief in Harney's support.*

Ginsburg invited Kessler to her apartment.

"I got to meet Ruth," Kessler said. Ginsburg read the younger lawyer's brief "while I was sitting there," Kessler said. 

Kessler liked a William Shakespeare quote that Ginsburg used in her ACLU brief. With Ginsburg's permission, Kessler used it in her own as well:​

"[H]e that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed."

"Why, as a condition of marriage," Kessler asked in her brief, "should this state compel one party to the marriage to exact from the other party so dear a price as one's own name? No rational answer suggests itself."

Podell's lawyer, Bruce O'Neil, argued that Podell did not abuse his discretion in refusing to allow Harney to use her own name. He told the court that Podell's decision was "neither sexist nor chauvinist," the Journal reported.

"It is submitted that whatever doubt may have existed in the trial court's mind vanished, when the appellant and her husband informed the court that, if they had children, they would give them surnames composed of a hyphenation of their two surnames," he said in his brief. "The trial court may well have asked what surnames they anticipated their grandchildren would bear, if one of their hyphenated children married the hyphenated child of two other parents bearing different legal surnames. And if they lived to see their great-grandchildren, they might well encounter a child listing under the burden of a hyphenated surname made up of eight different surnames."

The court rejected O'Neil's arguments.

Podell's points "could well be valid under proper circumstances, but only if proof were adduced to support the conclusions," Justice Nathan Heffernan wrote for the majority. "The reasons given for the denial of the change of name are completely conclusory and without any evidence of their applicability to the situation before the court....Unsupported generalizations do not constitute a cause shown to deny a change of name."

The court also made a broader, more significant finding: "We conclude...that the common law in Wisconsin has never ossified to the point of a holding that a wife is required to take her husband's name. The implicit assumption is to the contrary." ​

*The National Organization for Women joined with the ACLU to submit the brief. Also submitting an amicus brief on Harney's behalf were the University of Wisconsin Women Law Students' Association and the Olympia Brown League.  

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The Unsung Heroes in Wisconsin Legal History is supported by grants from the Milwaukee Bar Association Foundation and the Wisconsin Law Foundation.