Comprehensive Legal Coverage

Book the Second, Chapter the Twenty-Ninth.  Of Title by Succession, Marriage and Judgment.

This chapter is about not being seen. Among the methods of acquiring property that Blackstone mentions here is marriage, “whereby those chattels which belonged formerly to the wife, are by act of law vested in the husband.” II, 433. This extraordinary redistribution of wealth “depends entirely on the notion of an unity of person between the husband and wife.” Id. And that person is the man. A married woman can’t 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’t make legally binding contracts or be a party to a lawsuit – can’t sue or be sued, because as far as the law is concerned she can’t be found. Blackstone explains that during marriage “the very being and existence of the woman is suspended . . . or entirely merged and incorporated in that of the husband.”Id. The name of this legal vanishing act is “coverture,” a term that originally meant “a bed cover, coverlet or quilt.” (OED) A woman subject to coverture – a femme-covert – was under wraps, undercover, invisible.

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’s 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.

Blackstone’s initial articulation of coverture is gender neutral. If anything, treating a married couple as if “they are one person in law” sounds like a recipe for equality. II, 433. But there’s 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’s 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, “as ready money, jewels, household goods, and the like.” Id. In what looks like a rather weak attempt to inject the doctrine with some reciprocity, Blackstone follows this dire catalogue by observing that “in one particular instance the wife may acquire a property in some of her husband’s goods.” II, 435. This consolation prize turns out to be literally the clothes on her back, which she gets to keep – after her husband dies! A woman’s “necessary apparel” and “ornaments . . . suitable to her rank and degree,” 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 “unkindly inclined” to do so. Id.  So much for family unity.

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.  How can people in the eighteenth century have believed this stuff? It turns out they probably didn’t. According to the historian Carolyn Steedman, eighteenth-century judges didn’t rely on the doctrine of coverture to justify decisions about women’s legal rights and liabilities, and most ordinary folks never heard of it (Blackstone and Women, Blackstone and His Critics, ed. Anthony Page & Wilfrid Prest).  Blackstone’s description of women’s legal invisibility wasn’t taken as an authoritative mandate, and it’s 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’t depend on poetic imagery and it wasn’t 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’ legal identity, women went to court for protection when husbands were abusive.

It seems coverture was always understood to be a fiction – a kind of legal myth. That doesn’t mean it was unimportant or innocent. Myths can have enormous cultural power. But they don’t 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’s control any more than ancient Greeks believed the sun was pulled up every morning by Apollo’s chariot.

In any case, coverture is history. Formally abolished in the nineteenth century by the Married Women’s Property Acts, it’s a relic of a bygone legal culture. There is, however, an ongoing practice today in which married women continue to be “merged and incorporated” into their husbands’ identities. I’m talking about women changing their names. The custom fell off a bit in the heyday of “second wave” feminism, and among a narrow slice of the baby-boom cohort it virtually disappeared. I never gave a second’s thought to the issue when I married in 1995, and I don’t remember ever discussing it with any of my friends. We just assumed we’d keep our own names. But taking one’s husband’s name has long been the majority practice, and it is nearly prevalent today as it was in the 1970s. Estimates vary, but apparently around 80% of women marrying today change their names.

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’s attaching any deep meaning to symbolic rituals. It’s just something that we’ve always done — a sort of cultural habit. Still, women’s name change is expected, and there’s always pressure to conform to existing social customs. “I didn’t want to do anything too out of the norm,” said one woman. Moreover, it’s not just about toeing the social line for its own sake. Expectations can make non-conformity a huge hassle. Explaining to your family and friends why you don’t 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 another woman offered, “it makes things easier in terms of hotel reservations and things like that.”

But just as the eighteenth-century confiscation of women’s property can’t be justified by belief in a couple’s trans-substantial merger, today’s name change custom cannot be explained entirely as a matter of habit and expediency. I guess taking your husband’s name also makes monogramming cheaper, but really? In the first place, changing your name takes some doing – you have to change your driver’s 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’s sister care?  It can only be because the name change retains some positive symbolic value, and it’s not all that hard to find some.

Like coverture, adopting your husband’s name ostensibly enacts a merger, a unified family identity. As the woman who offered the pragmatic hotel explanation observed, “It’s like you’re a unit if you have the same name.” But as with coverture, it’s not clear why this ideal unity has to be achieved by wiping out, or covering up, only one person’s identity–and why that is seen as a feminine role.

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 advises that cloth face masks should be worn in public. But President Trump and Vice-President Mike Pence both refuse to wear them.  “Somehow I don’t see it for myself,” Trump mused last month. As others have observed, 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’s public image. It’s about projecting an image of imperviousness, an ability to withstand exposure and literally face down danger. Pence was mocked when he explained that he did not wear a mask at the Mayo Clinic because he wanted to “look the health care workers in the eye.”   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.

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 to protect others from the 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’s certainly not consistent with careless “grab ‘em by the pussy” machismo.  And because masking one’s face in the pandemic is government mandated, it also represents submission to authority.

Married women’s name change may have similar associations. Or, rather, since the name change itself seems to draw little conscious attention, failing to change one’s name may evoke responses indicating similar norms. As one psychologist notes, “Women are expected to be communal, sacrificing their individual interests to the well-being of the collective family.” 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’s own name evokes self-sacrifice, taking one’s husband’s surname may look self-protective, like linking oneself with a more powerful male persona, verifying that one’s 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 one, “a man whose wife retained her surname was rated as less instrumental, more expressive, and as holding less power in the relationship.”

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’s name change today isn’t 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.

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  marriage’s problematic gender politics. Maybe I’m the one mistaking ritual for reality, imagining that by keeping my name – my maiden name that comes from my father and my father’s father and my father’s father’s father – I have somehow escaped the stereotypical gender roles that marriage tends to perpetuate.

I picture my law students (many of whom, to my consternation, take their husbands’ 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 Catharine MacKinnon for Christ’s sake! If you’re 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?

Still, I’m not willing to call it quits on my critique of the name change custom. Ritual is not false belief, but neither is it  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 “she.” It wasn’t that I was fooled into believing that judges were just as likely to be women as men.  I understood the reference to signal a commitment to that ideal. Alternating he/she pronouns has been the academic norm 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 “she” can still evoke a surprising sense of recognition.

Coverture is such a funny, revelatory word. For all Blackstone’s 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’s some confusion here. Coverture only lasts for the duration of a marriage. Being “entirely merged and incorporated” in someone else sounds pretty permanent, but legally, a woman’s independent existence isn’t extinguished, it’s only “suspended,” as Blackstone says. II, 433. The femme-covert isn’t dead, she’s only sleeping, or ensorcelled. Like Sleeping Beauty in reverse, when her husband disappears, the woman under the sheet comes back to herself. When there’s no longer anyone close enough to be endangered, she comes out from under the covers, answers to her name.