In discussing, of all things, gay marriage, Justice Ruth Bader Ginsburg really messed with my head this week. She made some strange statements about the “evolution of marriage” that I didn’t “get”, until I saw an article which talked about “Head and Master” laws that were still in effect until 1979 in at least one state and it brought me back to the time when I grew up.
I am coming to appreciate that all laws have a political purpose. After binge-watching “The West Wing” this past year, I came to see the process of laws — which gets chosen for consideration and which don’t, what laws are finally enacted and which aren’t, where compromise falls — all depend on who is in power and what their agenda is, vs. what the agenda of the leaders of the other side is, and finally what we get to emerges.
Each serves a political function of some kind or another in a specific time or place and can become “the way it is”, which can become “the way it always has been”, which later become “obvious” or “natural” to society at large.
Head and master laws are the old way of dealing with men and women legally. They state that men are legally required to provide for a woman when they get married, because she is nothing without him in the eyes of the law.
In the old days, if a man divorced his wife, she got at least half of what he owned because she had no existence without him in the eyes of the law. She could not enter into a contract and start a business, because she legally didn’t exist. She couldn’t buy a house because because she legally didn’t exist. Because she was helpless, in the eyes of the law, he had to support her. In my practice, I see cases to this day that are influenced by this type of thinking: The mother is assumed to be the gentle, nurturing one even if she is psychotic or absent or simply less “warm and fuzzy” than the father. It is not justice, in that it is not situation based. It’s not about the specific case in front of the judge, it is about what the law’s bias says is going on. On the other hand, this is why a mother’s murdering her child is sooooo much more horrific than a father’s doing so — because we believe that all women are supposed to be nurturing. If they are not, that’s bad. But if they murder a child, they go against the supposed grain of all of nature.
Men who believe in feminism don’t really exist either, if we believe this — and the law did (and still does in some judges’ minds). If I wanted to stay home and wash dishes and raise the children while my wife works, that simply wasn’t an option under these rules. Yet, in getting two master’s degrees, I never heard of these laws. I just thought they were old ways of thinking. I didn’t know where they came from but they informed my thinking all the time I was growing up.
When Anita Hill called out Clarence Thomas, and the world split between “Men who didn’t get it” and “women who did”, this was a radical concept. I was probably on the wrong side of that line — or told I was when it all came out because, in Man’s World, it was “obvious” that women wanted sex as much as men, and that because they got married, of course, they were sexually receptive to their husband any time he wanted it. Since they were obliged, there was no idea that a husband could rape his own wife.
Even with the new feminism, I/ we would end up at the same place as this legal rule. Not that I ever owned a woman (don’t be stupid!), but because we were equals. Since men and women were the same in all ways, all we had to do was look at ourselves to understand what women wanted. Since mechanics all had sexy calendars at work, women must like them, too. Extrapolating this, Anita Hill had no reason to complain when Thomas would bring porn to work or make sexist jokes.
My wife can’t believe that when I grew up there were employment ads that said “help wanted, male” and “help wanted, female”. My daughters don’t believe me when I explain that “there were no gay people” when I was growing up. It was “obvious” to us — where would the parts fit? Ahead of my time in some ways, but not in others, as a liberal man, I got hit by trucks going both ways (from the right for not being a man, and from the left for not understanding women).
When feminists talked about not “being given away like property” at weddings, I knew it was a tradition to have the bride “given away”, but since she wasn’t actually property (obviously), I just figured it was a stupid argument made by women who just wanted to complain about men. Little did I know, it had been the law of the land for years. And, again, even with two master’s degrees, I had never heard of this concept or the legal precedents that enshrined it.
So, given all of this, this is what we used to believe, what we said was law, even if no body I knew believed it anymore. In Europe, the French, and other countries had rules that were designed to make sure that women were taken care of by marriage, but didn’t exist as soon as they got married. The idea was that “Men when were actually people because they could make decisions and women couldn’t make decisions for themselves, so they “obviously” weren’t legally people. Because of this, when people married, the woman became “covered” by all the privileges her husband had (why should she need her own?). Interestingly, women were believed to willingly into this wedding contract. Once they did, they belonged to the man. This is why a wife suddenly went by “Mrs. Joe Smith instead of her former first name and her last name”. A wife couldn’t even commit a crime because she didn’t exist legally. Who were you going to charge? According to the law, they weren’t there. Her husband would have to deal with issues as he had power or wealth to do so. According to an article I read, mortgages were still written (as late as 2005) with the man’s name first because of the remnants of this law.
The English took this “Coverture” law as a good idea and adopted it as their own. When they came to America, they brought it with them, since the British Empire proved that it knew The Right Way To Do Things. The more free folks here now acknowledged that a woman could marry for love, but the rules still applied. Slowly — very slowly — society changed and the laws changed — Louisiana still had Head and Master Laws (the American version of Coverture) until 1979! As most of us stay away from the court system, no one I knew paid any attention to the change, We “men” (in 1979, I was 19) didn’t know it was there in the first place, and didn’t note it’s change when it went, but it was a huge change, and I never heard of it until today. In fact, as I type this, my computer’s spell checker doesn’t recognize the word!
We develop, our relationships change, our laws change, but they remain out of date. Why? Because they are put on the books and are never removed. In the past, police in the middle of a union contract negotiation would suddenly give tickets out for not having a horse pole in the front of your house. A horse pole? Yes, the laws of the 1800’s were still on the books, and so it still was illegal to not have a pole to hitch up your horse!
In the same way, the federal government released a report today that said that in parts of St. Louis, the police’s job — given budget cuts and city needs — was to make up for the loss of income by giving out “predatory” tickets — speed traps and such, with fines if they weren’t paid. I’m pretty sure that when people asked for tax relief in the early 1980’s, they didn’t think they were voting for police harassment. That style of policing is part of the injustice that came to light with the Michael Brown shooting. It’s been that way probably since then — 35 years now. Couldn’t they revisit the tax code and make it fairer and enough to do the job, so police don’t have to.
Congress, this month or year, will revisit the Patriot Act because anything like 9/11 hasn’t happened for 14 years now. If there was a ever a reason for this law — often signed without a thorough reading, or a reading — at all, it is clear that we did all kinds of unconscionable things as a country because of it — kidnapping people, putting people in jail without charges, torture, having the government review people’s library borrowing history, and so much more. If this thing isn’t repealed now or stripped of all it’s immoral clauses, it will stay in effect and future generations will think “that’s the way it is”, then “that’s the way it’s always been” and those things will be “obviously” the right thing to do.
While I’m on a rant, the last law that I have trouble with at the moment is President Obama’s trade agreement with China which he’s hoping to Fast Track (i.e. “railroad”) through Congress. I understand his desire to be trusted, and in fact I do trust him. Apparently people like Elizabeth Warren said that they hadn’t seen. Obama responded, “Yes, they have seen in. They just can’t talk to the public about it”. Since he said that, I would say that”If you’re doing something you can’t talk about, maybe you shouldn’t be doing it”.
Establishing any -ism: sexism, racism, or nationalism — or inequality, anger or fear — through the law is always a bad idea. It gives something bad the ability to last forever or be dealt with until it’s repealed, simply because of the authority that the law has. Doing it without thinking or knowing you are doing it isn’t any better. There really is no excuse, even if things seem inefficient.
My friends who are Quakers are excruciatingly slow to make decisions for a group, but they seldom get it wrong when they do. We need to consider the laws we are making. We need to consider whether they are moral, whether they really need to be written, and whether or not they can be reviewed and easily fixed. None of this can be done without actually knowing what you’re voting on. Today’s emergency doesn’t have to be tomorrow’s mistake.
As a final note, I have never written a research paper for my blog before, so I’m sorry that it’s so long. I thought it was important to be thorough. I hope it wasn’t boring.
References for this article can be found at: