{"id":4266,"date":"2020-11-18T13:49:00","date_gmt":"2020-11-18T18:49:00","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=4266"},"modified":"2020-11-18T13:49:00","modified_gmt":"2020-11-18T18:49:00","slug":"comprehensive-legal-coverage","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/11\/18\/comprehensive-legal-coverage\/","title":{"rendered":"Comprehensive Legal Coverage"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book the Second, Chapter the Twenty-Ninth.\u00a0 Of Title by Succession, Marriage and Judgment.<\/strong><\/a><\/p>\n

This chapter<\/a>\u00a0is about not being seen. Among the methods of acquiring property that Blackstone mentions here is marriage, \u201cwhereby those chattels which belonged formerly to the wife, are by act of law vested in the husband.\u201d II, 433. This extraordinary redistribution of wealth \u201cdepends entirely on the notion of an unity of person between the husband and wife.\u201d\u00a0Id.<\/em>\u00a0And that person is the man. A married woman can\u2019t have property rights because, having merged into her husband, the law no longer recognizes her as a separate person. On the same theory, she can\u2019t make legally binding contracts or be a party to a lawsuit \u2013 can\u2019t sue or be sued, because as far as the law is concerned she can\u2019t be found. Blackstone explains that during marriage \u201cthe very being and existence of the woman is suspended . . . or entirely merged and incorporated in that of the husband.\u201dId.<\/em>\u00a0The name of this legal vanishing act is \u201ccoverture,\u201d a term that originally meant \u201ca bed cover, coverlet or quilt.\u201d (OED) A woman subject to coverture \u2013 a\u00a0femme-covert\u00a0<\/em>\u2013 was under wraps, undercover, invisible.<\/p>\n

I have always thought of coverture as a peculiar and poetic doctrine, one of those archaic confabulations that distinguishes the imaginative common law mindset from today\u2019s disenchanted outlook. Much as I might romanticize that bygone legal poetry, its absence does tend to validate the superior clarity of my own analytic perspective. But as often happens, when I looked closer at that self-validating difference it faded. In the end, thinking about coverture during a global pandemic brought together and complicated my understanding of both that eighteenth-century legal doctrine and a twenty-first-century marital custom.<\/p>\n

Blackstone\u2019s initial articulation of coverture is gender neutral. If anything, treating a married couple as if \u201cthey are one person in law\u201d sounds like a recipe for equality. II, 433. But there\u2019s no mistaking the devastatingly unequal consequences. Even Blackstone seems embarrassed as he spells these out. He goes on at great length about the ways a woman\u2019s interests in real estate might come back to her, or at least to her heirs, after her husband dies, before noting that marriage permanently strips a woman of all her personal property, \u201cas ready money, jewels, household goods, and the like.\u201d\u00a0Id.\u00a0<\/i>In what looks like a rather weak attempt to inject the doctrine with some reciprocity, Blackstone follows this dire catalogue by observing that \u201cin one particular instance the wife may acquire a property in some of her husband\u2019s goods.\u201d II, 435. This consolation prize turns out to be literally the clothes on her back, which she gets to keep \u2013 after her husband dies! A woman\u2019s \u201cnecessary apparel\u201d and \u201cornaments . . . suitable to her rank and degree,\u201d cannot be willed by her husband to anyone else. II, 436. During his lifetime, however, he is free to sell or give them away, if, as Blackstone notes uneasily, he is \u201cunkindly inclined\u201d to do so.\u00a0Id<\/em>. \u00a0So much for family unity.<\/p>\n

As a moral justification for such total subjugation, coverture is jaw-droppingly ridiculous. There is no way that a poetic image of marital unity can legitimize stripping a woman of all her property.\u00a0 How can people in the eighteenth century have believed this stuff? It turns out they probably didn\u2019t. According to the historian Carolyn Steedman, eighteenth-century judges didn\u2019t rely on the doctrine of coverture to justify decisions about women\u2019s legal rights and liabilities, and most ordinary folks never heard of it (Blackstone and<\/em>\u00a0Women,\u00a0Blackstone and His Critics<\/a>, ed. Anthony Page & Wilfrid Prest). \u00a0Blackstone\u2019s description of women\u2019s legal invisibility wasn\u2019t taken as an authoritative mandate, and it\u2019s not an accurate report of contemporary legal practice. Sure women were greatly disadvantaged and subordinated in eighteenth century law and society. But the loss of agency and property didn\u2019t depend on poetic imagery and it wasn\u2019t absolute. Married women independently conducted some business, and courts enforced the bargains they made, especially with household servants. Women could sue for property claims in courts of equity. And despite their supposed incorporation into their husbands\u2019 legal identity, women went to court for protection when husbands were abusive.<\/p>\n

It seems coverture was always understood to be a fiction \u2013 a kind of legal myth. That doesn\u2019t mean it was unimportant or innocent. Myths can have enormous cultural power. But they don\u2019t have that power because people mistake them for reality. English men and women in the eighteenth century did not see coverture as the reason why married women were stripped of property and subjected to their husband\u2019s control any more than ancient Greeks believed the sun was pulled up every morning by Apollo\u2019s chariot.<\/p>\n

In any case, coverture is history. Formally abolished in the nineteenth century by the\u00a0Married Women\u2019s Property Acts<\/a>, it\u2019s a relic of a bygone legal culture. There is, however, an ongoing practice today in which married women continue to be \u201cmerged and incorporated\u201d into their husbands\u2019 identities. I\u2019m talking about women changing their names. The custom fell off a bit in the heyday of \u201csecond wave\u201d feminism, and among a narrow slice of the baby-boom cohort it virtually disappeared. I never gave a second\u2019s thought to the issue when I married in 1995, and I don\u2019t remember ever discussing it with any of my friends. We just assumed we\u2019d keep our own names. But taking one\u2019s husband\u2019s name has long been the majority practice, and it is nearly as prevalent today as it was in the 1970s. Estimates vary, but apparently\u00a0around 80%<\/a>\u00a0of American women marrying today change their names.<\/p>\n

For years I have wondered why women voluntarily perpetuate a practice that effaces their independent identity. And it seems especially strange in this #metoo era. One explanation many women give is that the name change is simply the path of least resistance. The notion is that in our no-nonsense era nobody\u2019s attaching any deep meaning to symbolic rituals. It\u2019s just something that we\u2019ve always done \u2014 a sort of cultural habit. Still, women\u2019s name change is expected, and there\u2019s always pressure to conform to existing social customs. \u201cI didn\u2019t want to do anything too out of the norm,\u201d\u00a0said one woman<\/a>.\u00a0 Social expectations can make non-conformity a huge hassle. Explaining to your family and friends why you don\u2019t want to change your name and convincing them that you are not denying your future children a secure family identity requires emotional labor. Changing your name avoids all that. Plus, as\u00a0another woman offered<\/a>, \u201cit makes things easier in terms of hotel reservations and things like that.\u201d<\/p>\n

But just as the eighteenth-century confiscation of women\u2019s property can\u2019t be justified by belief in a married couple\u2019s trans-substantial merger, today\u2019s name change custom cannot be explained entirely as a matter of habit and expediency. I guess taking your husband\u2019s name also makes monogramming cheaper, but really? In the first place, changing your name takes some doing \u2013 you have to change your driver\u2019s license, your bank accounts and your passport, to say nothing of the endless internet accounts. But more important, if changing your name is really no big deal, why does it take so much effort to explain the choice not to do it? Why does your fiancee\u2019s sister care?\u00a0 It can only be because the name change retains some positive symbolic value, and it\u2019s not all that hard to find some.<\/p>\n

Like coverture, adopting your husband\u2019s name ostensibly enacts a merger, a unified family identity. As the woman who offered the pragmatic hotel explanation\u00a0observed,<\/a>\u00a0\u201cIt\u2019s like you\u2019re a unit if you have the same name.\u201d But as with coverture, it\u2019s not clear why this ideal unity has to be achieved by wiping out, or covering up, only one person\u2019s identity\u2013and why that is seen as a feminine role.<\/p>\n

It so happens that right now another, literal, form of covering is eliciting a complicated set of gender associations. To stem the transmission of COVID-19, the U.S. Center for Disease Control\u00a0advises<\/a>\u00a0that cloth face masks should be worn in public. But President Trump and Vice-President Mike Pence both refuse to wear them.\u00a0 \u201cSomehow I don\u2019t see it for myself,\u201d Trump\u00a0mused<\/a>\u00a0last month. As\u00a0others have observed<\/a>, the reason seems to be that a protective face covering suggests vulnerability, and so is antithetical to the hyper-masculinity that is so much a part of both men\u2019s public image. It\u2019s about projecting an image of imperviousness, an ability to withstand exposure and literally face down danger. Pence was\u00a0mocked<\/a>\u00a0when he explained that he did not wear a mask at the Mayo Clinic because he wanted to \u201clook the health care workers in the eye.\u201d\u00a0\u00a0 But it made a certain kind of sense. Hiding his mouth behind a protective covering might make it harder to carry off the stereotypically bold show of masculine power that look-them-in-the eye self-assertion is meant to produce.<\/p>\n

The tragic irony, of course, is that the masks Trump and Pence refuse to wear are not primarily meant to protect the people wearing them, but rather\u00a0to protect others<\/a>\u00a0from<\/em>\u00a0the wearer. So by rejecting this supposed sign of effeminate vulnerability, they are not actually foregoing self-protection at all; they are just failing to protect others. Then again, covering your own face to protect others is itself the kind of socially conscious self-diminishing act typically associated with feminine roles. Women are expected to think of and care for others, so even the low-cost self-sacrifice of mask wearing might diminish a hyperbolically masculinist image. It\u2019s certainly not consistent with careless \u201cgrab \u2018em by the pussy\u201d machismo.\u00a0 And because masking one\u2019s face in the pandemic is government mandated, it also represents submission to authority.<\/p>\n

Married women\u2019s name change may have similar associations. Or, rather, since the name change itself seems to draw little conscious attention,\u00a0failing<\/em>\u00a0to change one\u2019s name may evoke responses indicating similar norms. As\u00a0one psychologist notes<\/a>, \u201cWomen are expected to be communal, sacrificing their individual interests to the well-being of the collective family.\u201d Thus women who keep their own names may be seen as selfish and uncommitted to their marriage and family. At the same time that giving up one\u2019s own name evokes self-sacrifice, taking one\u2019s husband\u2019s surname may look self-protective, like linking oneself with a more powerful male persona, verifying that one\u2019s marriage embodies a stereotypically gendered power relationship. Sure enough, studies show that men whose wives do not take their names tend to be viewed as less masculine. In\u00a0one,<\/a>\u00a0\u201ca man whose wife retained her surname was rated as less instrumental, more expressive, and as holding less power in the relationship.\u201d<\/p>\n

None of this means that women who change their names today are thinking it will make their marriage more unified or their husbands more masculine. The reason so many brush off its importance when asked is probably that they understand it as a symbolic performance that does not aim at any instrumental results. Like coverture in the eighteenth century, women\u2019s name change today isn\u2019t believed to magically produce the condition it symbolizes. In fact, understood as performance, the name change custom calls attention to the gap between the ideal frictionless submersion of individuality that it symbolizes and the real conflict felt by many married couples today around gender roles.<\/p>\n

With all this in mind, I might want to stop wondering why women keep changing their names and start wondering why it bothers me so much. I might even start to suspect that distancing myself from the name change custom is a way to validate my own supposed transcendence of \u00a0marriage\u2019s problematic gender politics. Maybe I\u2019m the one mistaking ritual for reality, imagining that by keeping my name \u2013 my\u00a0maiden<\/em>\u00a0name that comes from my father and my father\u2019s father and my father\u2019s father\u2019s father \u2013 I have somehow escaped the stereotypical gender roles that marriage tends to perpetuate.<\/p>\n

I picture my law students (many of whom, to my consternation, take their husbands\u2019 names) shaking their heads at my primitive credulity. How can Professor Allen be so dim? Does she really think refusing to change her name changes the material relations of her marriage? She teaches\u00a0Catharine MacKinnon<\/a>\u00a0for Christ\u2019s sake! If you\u2019re going to bother to get married, you might as well enjoy the romantic fictions and save your energy for more substantial battles. What are you accomplishing by rejecting the symbols that decorate this troubling institution? Getting married without changing your name is like trying to cut calories by serving a wedding cake without frosting. Who are you kidding with this sanctimonious gesture?<\/p>\n

Still, I\u2019m not willing to call it quits on my critique of the name change custom. Ritual is not false belief, but neither is it\u00a0 meaningless. What we call people matters. Surely that is the lesson of the movement in recent years to expand the range of available pronouns and accommodate individual choice, rather than assuming a binary reference based on phenotype. For that matter, I still remember the shock of joy the first time I heard a law professor refer to a hypothetical judge as \u201cshe.\u201d It wasn\u2019t that I was fooled into believing that judges were just as likely to be women as men.\u00a0 I understood the reference as a fiction \u2014 a fragmentary performance of an imaginary world where gender equality was true. Alternating he\/she pronouns has been the academic custom for decades now, so I just assumed that it had lost most of its frisson, but my college sophomore daughter reports that referring to an unnamed judge or engineer as \u201cshe\u201d can still evoke a surprising sense of recognition.<\/p>\n

Coverture is such a funny, revelatory word. For all Blackstone\u2019s talk of merging and unification, the term literally just means being covered up. I have never been able to shake the image it conjures for me of a woman standing or lying awkwardly in the middle of a room covered from head to toe in some random fabric, as if someone had just thrown a sheet over her. But even literal covering can be ambiguous. After all, we cover things that are fragile to protect them and we cover things that are dangerous to protect ourselves from them. The conventional reading would seem to be that coverture protects the vulnerable woman, but as with the face masks in our pandemic, I think there\u2019s some confusion here. Coverture only lasts for the duration of a marriage. Being \u201centirely merged and incorporated\u201d in someone else sounds pretty permanent, but legally, a woman\u2019s independent existence isn\u2019t extinguished, it\u2019s only \u201csuspended,\u201d as Blackstone says. II, 433. The\u00a0femme-covert<\/em>\u00a0isn\u2019t dead, she\u2019s only sleeping, or ensorcelled. Like Sleeping Beauty in reverse, when her husband disappears, the woman under the sheet comes back to herself. When there\u2019s no longer anyone close enough to be endangered, she comes out from under the covers, answers to her name.<\/p>\n

Originally published May 21, 2020.\u00a0<\/a><\/p>\n\n

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