The Return of Coverture

Abstract

Once, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Today, the marriage narrative has been reversed and the prevailing attitude is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change such that discriminatory marriage rules no longer apply. Coverture exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. While celebrating the demise of coverture, however, the substantive image of marriage that Justice Kennedy set forth subconsciously uses conventional, historical tropes that construct marriage as a relationship of hierarchy, gender differentiation, and female disempowerment. In this Essay, I describe the ways in which Justice Kennedy used coverture as a positive example of marriage transformation while simultaneously invoking coverture ideals to inform his portrayal of marriage as a fundamental building block of government, the keystone of civil society, and a transcendental, lifelong commitment.