WEBVTT 00:00:00.799 --> 00:00:05.339 I want to start today by asking you to visualize 00:00:05.339 --> 00:00:07.839 a specific moment. Okay. It's a moment that, 00:00:07.900 --> 00:00:10.720 for a lot of people, represents the absolute 00:00:10.720 --> 00:00:13.939 peak of adult stability. You're sitting at a 00:00:13.939 --> 00:00:16.559 mahogany conference table. You've got a cramp 00:00:16.559 --> 00:00:18.539 in your hand because you have just signed your 00:00:18.539 --> 00:00:21.839 name about a hundred times. Oh, the closing on 00:00:21.839 --> 00:00:24.910 a house? Exactly. You hand over a check. that 00:00:24.910 --> 00:00:27.769 represents basically your life savings and in 00:00:27.769 --> 00:00:30.250 return someone slides a set of keys across the 00:00:30.250 --> 00:00:32.710 table right it is the quintessential american 00:00:32.710 --> 00:00:35.530 milestone it really is you walk out of there 00:00:35.530 --> 00:00:38.289 with the deed in hand and there's this fundamental 00:00:38.289 --> 00:00:41.689 almost uh biological assumption that kicks in 00:00:41.689 --> 00:00:43.729 you think i bought this i signed for this this 00:00:43.729 --> 00:00:45.670 is mine yeah or if you're married you assume 00:00:45.670 --> 00:00:47.829 it's ours it's all about that concept of security 00:00:47.829 --> 00:00:49.689 you just assume that because your name is on 00:00:49.689 --> 00:00:51.649 the taper you have legal control over the roof 00:00:51.649 --> 00:00:54.549 over your head right but Looking through the 00:00:54.549 --> 00:00:56.350 stack of legal history you've brought for our 00:00:56.350 --> 00:00:59.250 deep dive today. It's a heavy stack. It is. And 00:00:59.250 --> 00:01:01.490 that assumption is actually a very modern luxury 00:01:01.490 --> 00:01:04.310 because today we're going to look at a reality 00:01:04.310 --> 00:01:08.189 where that logic just didn't apply. And I'm not 00:01:08.189 --> 00:01:10.510 talking about the Middle Ages. No. Or some fictional 00:01:10.510 --> 00:01:14.010 dystopia. We are talking about the United States 00:01:14.010 --> 00:01:15.730 within the lifetime of many people listening 00:01:15.730 --> 00:01:17.709 to this right now. I want you to imagine a world 00:01:17.709 --> 00:01:21.670 where you pay for a house entirely, but your 00:01:21.670 --> 00:01:24.540 spouse has the legal right. to mortgage it or 00:01:24.540 --> 00:01:27.659 sell it without your knowledge or consent. It 00:01:27.659 --> 00:01:30.000 is genuinely jarring. We are diving into the 00:01:30.000 --> 00:01:32.299 history of what were known as the head and master 00:01:32.299 --> 00:01:34.560 laws. Head and master. I mean, it sounds like 00:01:34.560 --> 00:01:36.359 something out of a master servant contract from 00:01:36.359 --> 00:01:38.959 the 16th century. I know, but this was the actual 00:01:38.959 --> 00:01:42.319 literal legal terminology used in American statutes. 00:01:42.920 --> 00:01:45.780 That's just wild. So for today's deep dive, we're 00:01:45.780 --> 00:01:48.260 pulling from historical legal records, specifically 00:01:48.260 --> 00:01:50.959 Supreme Court case summaries regarding this property 00:01:50.959 --> 00:01:52.620 law. Right. And specifically, we are going to 00:01:52.620 --> 00:01:55.379 focus on Louisiana because that was the very 00:01:55.379 --> 00:01:58.069 last stronghold of this law in the country. So 00:01:58.069 --> 00:02:00.489 our mission today is to figure out how a law 00:02:00.489 --> 00:02:03.310 like this existed so recently. We're going to 00:02:03.310 --> 00:02:04.829 look at the dramatic court case that finally 00:02:04.829 --> 00:02:08.330 killed it and then how this history rippled forward 00:02:08.330 --> 00:02:11.669 to influence modern Supreme Court decisions as 00:02:11.669 --> 00:02:14.710 recently as 2015. It's a really incredible trajectory. 00:02:15.090 --> 00:02:17.469 It is. But first we have to deal with the law 00:02:17.469 --> 00:02:20.300 itself. Head and master. Can you break down what 00:02:20.300 --> 00:02:23.080 that actually meant in practice? Because it wasn't 00:02:23.080 --> 00:02:25.259 just a cultural attitude of, you know, men are 00:02:25.259 --> 00:02:27.539 in charge. No, not at all. This was strictly 00:02:27.539 --> 00:02:30.539 codified property law. It was a set of American 00:02:30.539 --> 00:02:33.219 laws permitting a husband to have the final say 00:02:33.219 --> 00:02:36.479 regarding all household decisions. To understand 00:02:36.479 --> 00:02:38.219 it, you have to look at how marriage handles 00:02:38.219 --> 00:02:40.939 money. Most states use what's called common law. 00:02:41.310 --> 00:02:43.569 Right. But Louisiana uses community property. 00:02:43.789 --> 00:02:46.110 Now, usually community property sounds great. 00:02:46.250 --> 00:02:48.229 Yeah. It implies that marriage is a partnership. 00:02:48.469 --> 00:02:51.430 What we earn together, we own together. 50 -50 00:02:51.430 --> 00:02:53.810 split. Exactly. Which is how most of us understand 00:02:53.810 --> 00:02:56.069 marriage today. It's a joint venture, in theory. 00:02:56.349 --> 00:02:59.509 But under the head and master statutes, specifically 00:02:59.509 --> 00:03:03.750 Article 2404 of the Louisiana Civil Code, the 00:03:03.750 --> 00:03:06.129 administration of that community property was 00:03:06.129 --> 00:03:09.219 giving exclusively to the husband. And administration 00:03:09.219 --> 00:03:11.879 is a very polite bureaucratic word for total 00:03:11.879 --> 00:03:14.120 control, isn't it? It really is. It was complete 00:03:14.120 --> 00:03:17.879 unilateral control. The statute explicitly stated 00:03:17.879 --> 00:03:20.060 that the husband is the head and master of the 00:03:20.060 --> 00:03:22.840 partnership. Wow. This meant he could sell, he 00:03:22.840 --> 00:03:25.159 could mortgage, trade, or dispose of the community 00:03:25.159 --> 00:03:28.240 property completely without the wife's consent. 00:03:28.539 --> 00:03:31.280 And crucially, based on the records, he didn't 00:03:31.280 --> 00:03:33.199 even have to tell her. He did not. OK, I want 00:03:33.199 --> 00:03:35.360 to push on the why here. Yeah. Because when we 00:03:35.360 --> 00:03:37.699 look back at history, it's so easy to just say, 00:03:37.759 --> 00:03:40.900 well, it was sexism. And obviously it was. Yeah. 00:03:41.199 --> 00:03:43.879 But laws usually have some kind of internal logic 00:03:43.879 --> 00:03:46.460 or justification, even if it's terribly flawed. 00:03:46.719 --> 00:03:49.240 Why did the state feel this was necessary? That 00:03:49.240 --> 00:03:51.819 is the pivotal question. The justification wasn't 00:03:51.819 --> 00:03:54.280 just men are better. The legal argument was actually 00:03:54.280 --> 00:03:56.740 based on economic efficiency. Efficiency. Yes. 00:03:56.819 --> 00:04:00.080 The state viewed the family unit not as two distinct 00:04:00.080 --> 00:04:02.819 individuals, but as a single economic entity. 00:04:03.099 --> 00:04:06.060 Like a corporation. Exactly. And every corporation 00:04:06.060 --> 00:04:09.280 needs a CEO. The logic was that for commerce 00:04:09.280 --> 00:04:12.000 to flow smoothly, you need a single decision 00:04:12.000 --> 00:04:14.460 maker. OK, I see where this is going. Right. 00:04:14.580 --> 00:04:17.079 If a bank has to get two signatures every time 00:04:17.079 --> 00:04:20.259 a loan is issued or if a buyer needs two approvals 00:04:20.259 --> 00:04:23.319 for every land sale, it creates friction. It 00:04:23.319 --> 00:04:26.720 slows down the economy. So the law designated 00:04:26.720 --> 00:04:29.620 the husband as the executive manager. So in the 00:04:29.620 --> 00:04:32.399 eyes of the law, efficiency was prioritized over 00:04:32.399 --> 00:04:35.740 basic rights. They literally sacrificed the autonomy 00:04:35.740 --> 00:04:38.680 of the wife just to make sure real estate deals 00:04:38.680 --> 00:04:41.519 could close faster. That is a very stark but 00:04:41.519 --> 00:04:44.519 very accurate way to put it. The wife was essentially 00:04:44.519 --> 00:04:46.959 a silent shareholder. She had an ownership interest, 00:04:47.060 --> 00:04:48.939 like she owned half the value of the home, but 00:04:48.939 --> 00:04:51.600 she had absolutely zero voting rights. That is 00:04:51.600 --> 00:04:53.620 shocking. And the sources highlight just how 00:04:53.620 --> 00:04:55.759 absolute this was. It did not matter whose name 00:04:55.759 --> 00:04:57.720 was on the deed. It didn't matter who actually 00:04:57.720 --> 00:05:00.079 paid for the property. That's the part that is 00:05:00.079 --> 00:05:02.319 so hard to wrap your head around. I could be 00:05:02.319 --> 00:05:04.790 working two jobs. I could buy a house in cash 00:05:04.790 --> 00:05:07.230 with my own paycheck, put my name on the title, 00:05:07.350 --> 00:05:09.290 and my husband, who maybe hasn't worked in a 00:05:09.290 --> 00:05:11.769 decade, could legally go down to the bank and 00:05:11.769 --> 00:05:13.930 mortgage it. Under the head and master statutes, 00:05:13.930 --> 00:05:16.990 yes. Once that money or that asset entered the 00:05:16.990 --> 00:05:19.410 community, the husband took the wheel. The law 00:05:19.410 --> 00:05:21.569 was completely blind to who earned the money. 00:05:21.670 --> 00:05:23.670 It only cared about the gender of the spouse 00:05:23.670 --> 00:05:25.910 designated to manage it. And we aren't talking 00:05:25.910 --> 00:05:28.769 about the Victorian era here. The repeal in Louisiana 00:05:28.769 --> 00:05:32.889 didn't happen until 1979. 1979. We had microwaves. 00:05:32.889 --> 00:05:35.649 We had Star Wars in theaters. We were well into 00:05:35.649 --> 00:05:38.810 the modern era. And yet in Louisiana, a woman's 00:05:38.810 --> 00:05:41.370 financial agency was completely subsumed by her 00:05:41.370 --> 00:05:44.089 marriage. It really echoes that old common law 00:05:44.089 --> 00:05:46.389 concept of coverture, doesn't it? Oh, absolutely. 00:05:46.689 --> 00:05:49.370 The idea that a woman's legal identity is covered 00:05:49.370 --> 00:05:52.569 by her husband upon marriage. So she essentially 00:05:52.569 --> 00:05:55.750 ceases to exist as a separate legal person. It's 00:05:55.750 --> 00:05:58.689 the direct descendant of coverture. Louisiana 00:05:58.689 --> 00:06:01.310 has a different legal tradition. It's based on 00:06:01.310 --> 00:06:04.389 the Napoleonic Code, but the effect is identical. 00:06:05.310 --> 00:06:08.370 It effectively infantilized women in the eyes 00:06:08.370 --> 00:06:10.389 of the financial system. Obviously, you can't 00:06:10.389 --> 00:06:12.550 have a modern society where half the population 00:06:12.550 --> 00:06:15.569 is working and earning money, but has the legal 00:06:15.569 --> 00:06:18.350 status of a child. Something had to break. Yes. 00:06:18.750 --> 00:06:20.889 And this brings us to the case of Kirchberg v. 00:06:20.949 --> 00:06:23.810 Feenstra. This is the turning point. And like 00:06:23.810 --> 00:06:25.970 many Supreme Court cases that change history, 00:06:26.230 --> 00:06:28.629 it didn't start with a high -minded constitutional 00:06:28.629 --> 00:06:32.160 debate. It started with a grim personal disaster. 00:06:32.639 --> 00:06:34.399 Right. And I want to warn the listener, this 00:06:34.399 --> 00:06:36.860 is a bit of a legal horror story. Reading the 00:06:36.860 --> 00:06:38.779 background of this case, it's heavy. We need 00:06:38.779 --> 00:06:41.399 to set the scene. It's 1974. We have Joan Feenstra. 00:06:41.540 --> 00:06:44.399 Right. Joan Feenstra is living in Louisiana and 00:06:44.399 --> 00:06:48.060 her life essentially implodes. Her husband, Harold 00:06:48.060 --> 00:06:50.459 Feenstra, is arrested. And he's not arrested 00:06:50.459 --> 00:06:53.379 for tax evasion or a bar fight. The source material 00:06:53.379 --> 00:06:56.120 is very specific and very disturbing here. He 00:06:56.120 --> 00:06:58.220 was incarcerated for molesting their young daughter. 00:06:58.560 --> 00:07:02.220 It is a heinous crime, a total betrayal of the 00:07:02.220 --> 00:07:05.360 family structure. So you have Joan dealing with 00:07:05.360 --> 00:07:07.480 the profound trauma of her child, the destruction 00:07:07.480 --> 00:07:09.779 of her marriage, and her husband is sitting in 00:07:09.779 --> 00:07:12.819 jail facing serious felony charges. And naturally 00:07:12.819 --> 00:07:15.439 facing those charges. He wants a lawyer. He does. 00:07:15.720 --> 00:07:18.199 But lawyers are expensive, especially for a criminal 00:07:18.199 --> 00:07:20.839 defense of that magnitude. Harold is in jail. 00:07:20.980 --> 00:07:23.399 He's not earning money. So he looks for assets. 00:07:23.600 --> 00:07:26.279 And the only real asset they have is the family 00:07:26.279 --> 00:07:29.160 home. The home that, according to the court records, 00:07:29.480 --> 00:07:32.500 Joan Feenstra had fully paid for herself. Correct. 00:07:32.879 --> 00:07:35.500 The sources are explicit on this point. Joan 00:07:35.500 --> 00:07:37.720 paid for the home with her own earnings. But 00:07:37.720 --> 00:07:40.680 Harold calls his attorney, a man named Carl Kirchberg. 00:07:40.839 --> 00:07:42.339 That's the other name of the case title. Right. 00:07:42.439 --> 00:07:44.819 And Harold says to him, I don't have cash, but 00:07:44.819 --> 00:07:46.860 I have a house. I will give you a mortgage on 00:07:46.860 --> 00:07:49.220 the house to cover your fee. Let's just sit with 00:07:49.220 --> 00:07:51.160 the absolute injustice of this for a second. 00:07:51.259 --> 00:07:54.569 He abuses the daughter. And to pay for the lawyer 00:07:54.569 --> 00:07:57.329 to defend him against that charge, he mortgages 00:07:57.329 --> 00:07:59.629 the roof over the head of the daughter he abused 00:07:59.629 --> 00:08:02.790 and the wife who paid for it. Precisely. It is 00:08:02.790 --> 00:08:06.129 layer upon layer of violation. And because of 00:08:06.129 --> 00:08:08.370 the head and master law, he didn't need Joan's 00:08:08.370 --> 00:08:11.050 permission. He executed the mortgage from his 00:08:11.050 --> 00:08:13.889 jail cell. Joan didn't even know what had happened. 00:08:14.089 --> 00:08:16.810 It's almost a cartoonish level of villainy, but 00:08:16.810 --> 00:08:18.850 it was fully sanctioned by the state. When did 00:08:18.850 --> 00:08:20.769 she actually find out she was in debt to her 00:08:20.769 --> 00:08:23.370 husband's lawyer? She found out when the attorney, 00:08:23.610 --> 00:08:27.189 Kirchberg, started threatening foreclosure. Harold 00:08:27.189 --> 00:08:29.689 presumably didn't pay the bill or the mortgage 00:08:29.689 --> 00:08:32.549 came due. And suddenly Joan is being told, get 00:08:32.549 --> 00:08:34.450 out of your house. It belongs to the lawyer now. 00:08:34.570 --> 00:08:36.970 Now, the source material mentions a specific 00:08:36.970 --> 00:08:39.490 legal maneuver Joan made that I found really 00:08:39.490 --> 00:08:42.590 interesting. It says you drop the charges and 00:08:42.590 --> 00:08:44.830 then legally separated from them. Can we unpack 00:08:44.830 --> 00:08:47.230 that? Because at first glance, dropping charges 00:08:47.230 --> 00:08:49.809 against a man who hurt your child sounds baffling. 00:08:49.909 --> 00:08:51.450 It does, but we have to look at it through the 00:08:51.450 --> 00:08:53.629 lens of a desperate legal strategy. The sources 00:08:53.629 --> 00:08:55.649 suggest this was about clearing the deck to get 00:08:55.649 --> 00:08:58.169 to the civil proceedings. Criminal trials take 00:08:58.169 --> 00:09:01.029 months, sometimes years. If she waited for him 00:09:01.029 --> 00:09:02.889 to be convicted, the foreclosure might have already 00:09:02.889 --> 00:09:04.870 happened. She would have lost the house before 00:09:04.870 --> 00:09:07.570 he even went to prison. Exactly. So she had to 00:09:07.570 --> 00:09:09.409 stop the financial bleeding before she could 00:09:09.409 --> 00:09:12.090 deal with anything else. So by separating, she 00:09:12.090 --> 00:09:14.370 was trying to dissolve the community property 00:09:14.370 --> 00:09:17.210 regime. Right. She needed to sever the financial 00:09:17.210 --> 00:09:20.490 tie immediately. It implies she made a really 00:09:20.490 --> 00:09:23.710 heartbreaking choice to prioritize saving the 00:09:23.710 --> 00:09:26.509 physical home for herself and her daughter over 00:09:26.509 --> 00:09:29.230 the immediate criminal prosecution. But she didn't 00:09:29.230 --> 00:09:31.940 just try to save the house. She went on the offensive. 00:09:32.279 --> 00:09:34.759 She didn't just sue the lawyer. She sued the 00:09:34.759 --> 00:09:38.080 law itself. She did. She filed a suit arguing 00:09:38.080 --> 00:09:40.820 that the head and master statute was fundamentally 00:09:40.820 --> 00:09:43.799 unconstitutional. She argued that the state didn't 00:09:43.799 --> 00:09:45.879 have the right to give her husband that power 00:09:45.879 --> 00:09:49.120 solely based on his gender. Right. She argued 00:09:49.120 --> 00:09:51.200 it violated the Equal Protection Clause of the 00:09:51.200 --> 00:09:53.679 14th Amendment. Basically, the state was treating 00:09:53.679 --> 00:09:56.460 her differently and worse solely because she 00:09:56.460 --> 00:09:58.659 was a woman. And this legal battle didn't happen 00:09:58.659 --> 00:10:01.210 overnight. The mortgage was executed in 1974. 00:10:01.889 --> 00:10:04.450 The Supreme Court decision wasn't until 1981. 00:10:04.990 --> 00:10:08.230 That is seven years of living in limbo, not knowing 00:10:08.230 --> 00:10:10.950 if you own your own home. It's a grueling timeline. 00:10:11.309 --> 00:10:13.750 And it's important to note the lower courts didn't 00:10:13.750 --> 00:10:16.019 make it easy for her. The district court actually 00:10:16.019 --> 00:10:19.100 sided with the lawyer, Kirchberg. Really? Yes. 00:10:19.139 --> 00:10:21.440 They basically said, look, the law is the law. 00:10:21.559 --> 00:10:24.320 The husband signed it. It's valid. Too bad. That 00:10:24.320 --> 00:10:27.240 must have been infuriating for her. The system 00:10:27.240 --> 00:10:30.139 was protecting its own efficiency over her basic 00:10:30.139 --> 00:10:33.720 property rights. But eventually, it gets all 00:10:33.720 --> 00:10:37.240 the way to the Supreme Court. Kirchberg v. Feenstra. 00:10:38.100 --> 00:10:42.179 1981. What was the final verdict? It was unanimous. 00:10:42.549 --> 00:10:44.289 The Supreme Court concluded that the statute 00:10:44.289 --> 00:10:47.370 was unconstitutional. Finally. Justice Thurgood 00:10:47.370 --> 00:10:50.070 Marshall wrote the opinion. He essentially said 00:10:50.070 --> 00:10:52.350 that gender -based discrimination is only allowed 00:10:52.350 --> 00:10:54.509 if it serves an important governmental objective. 00:10:54.909 --> 00:10:57.110 And the state's argument that it was just cheaper 00:10:57.110 --> 00:10:59.350 and easier to let the husband decide simply didn't 00:10:59.350 --> 00:11:01.809 cut it. Administrative convenience isn't an excuse 00:11:01.809 --> 00:11:04.210 for stripping away civil rights. Exactly. They 00:11:04.210 --> 00:11:07.090 invalidated the mortgage entirely. Joan Feenstra 00:11:07.090 --> 00:11:09.360 kept her home. And the head and master provision 00:11:09.360 --> 00:11:12.259 was tossed into the dustbin of history. So in 00:11:12.259 --> 00:11:15.580 1981, the legal system finally admits, OK, marriage 00:11:15.580 --> 00:11:18.120 is a partnership of equals. You can't just assign 00:11:18.120 --> 00:11:20.679 power based on gender. Correct. And for most 00:11:20.679 --> 00:11:23.480 people, that is where the story ends. A bad law 00:11:23.480 --> 00:11:27.399 is fixed. A brave woman wins. Case closed. But 00:11:27.399 --> 00:11:29.059 that's not why we're doing a deep dive into this 00:11:29.059 --> 00:11:31.799 today, because this story has a sequel and the 00:11:31.799 --> 00:11:34.200 sequel takes place in 2015. It does. And this 00:11:34.200 --> 00:11:36.460 is where legal history stops being just history 00:11:36.460 --> 00:11:38.759 and becomes a very sharp tool. We're fast forwarding 00:11:38.759 --> 00:11:41.919 34 years. The legal landscape has changed completely. 00:11:42.139 --> 00:11:44.820 We are talking about Obergefell v. Hodges, the 00:11:44.820 --> 00:11:46.679 landmark case that established the right to same 00:11:46.679 --> 00:11:48.820 sex marriage. Arguably the biggest civil rights 00:11:48.820 --> 00:11:51.220 case of the 21st century so far. And who shows 00:11:51.220 --> 00:11:53.059 up in the oral arguments but the late Justice 00:11:53.059 --> 00:11:56.500 Ruth Bader Ginsburg? Now, RDG built her career 00:11:56.500 --> 00:11:59.000 on gender equality cases. She knew the history 00:11:59.000 --> 00:12:02.179 of cases like Feenstro inside and out. How did 00:12:02.179 --> 00:12:05.080 she leverage this 1970s mortgage case in a 2015 00:12:05.080 --> 00:12:07.679 marriage equality case? It was a brilliant bit 00:12:07.679 --> 00:12:11.000 of legal jujitsu. To understand it, you have 00:12:11.000 --> 00:12:13.940 to remember the main argument against same -sex 00:12:13.940 --> 00:12:16.299 marriage at the time. The opponents weren't just 00:12:16.299 --> 00:12:18.759 arguing morality. They were arguing tradition 00:12:18.759 --> 00:12:22.320 with a capital T. Right. The argument was marriage 00:12:22.320 --> 00:12:25.539 has been defined as one man and one woman for 00:12:25.539 --> 00:12:28.700 millennia. The court cannot simply redefine an 00:12:28.700 --> 00:12:31.960 ancient institution. Exactly. They framed marriage 00:12:31.960 --> 00:12:35.179 as a static, unchanging institution. They said, 00:12:35.179 --> 00:12:37.279 this is how it has always been, so this is how 00:12:37.279 --> 00:12:40.360 it must stay. RBG used the head and master laws 00:12:40.360 --> 00:12:42.600 to prove that was a complete fiction. How so? 00:12:42.820 --> 00:12:44.919 She pointed out that for the vast majority of 00:12:44.919 --> 00:12:46.940 Western history, traditional marriage wasn't 00:12:46.940 --> 00:12:49.340 a partnership of equals. It was a relationship 00:12:49.340 --> 00:12:52.179 of dominance and subordination. It was literally 00:12:52.179 --> 00:12:54.600 the head and master relationship. So when the 00:12:54.600 --> 00:12:56.940 court struck down those laws in cases like Kirchberg 00:12:56.940 --> 00:12:59.840 v. Feinstra, they had already fundamentally redefined 00:12:59.840 --> 00:13:01.700 marriage. I see. She's saying we already changed 00:13:01.700 --> 00:13:04.600 the definition. Yes. She's saying we changed 00:13:04.600 --> 00:13:06.919 marriage from an institution of ownership to 00:13:06.919 --> 00:13:09.509 an institution. of equal partnership. That was 00:13:09.509 --> 00:13:12.750 a massive break from tradition. If we stuck to 00:13:12.750 --> 00:13:15.389 strict tradition, Joan Feenstra would have lost 00:13:15.389 --> 00:13:18.490 her house. So her argument was that the court 00:13:18.490 --> 00:13:20.529 has already intervened to make marriage more 00:13:20.529 --> 00:13:24.070 equal over the years. Opening it up to same -sex 00:13:24.070 --> 00:13:26.690 couples isn't destroying the institution. It's 00:13:26.690 --> 00:13:28.789 just the next logical step in that evolution. 00:13:29.549 --> 00:13:32.309 Precisely. She argued that the traditional marriage 00:13:32.309 --> 00:13:34.409 the opponents were defending had already been 00:13:34.409 --> 00:13:36.549 stripped of its traditional gender roles by the 00:13:36.549 --> 00:13:39.570 court itself. We moved away from coverture. We 00:13:39.570 --> 00:13:41.470 moved away from the husband having the final 00:13:41.470 --> 00:13:45.450 legal say. Therefore, gender is no longer central 00:13:45.450 --> 00:13:48.230 to the legal structure of marriage. That is such 00:13:48.230 --> 00:13:50.470 a powerful reframing. It completely takes the 00:13:50.470 --> 00:13:52.830 wind out of the tradition argument. because it 00:13:52.830 --> 00:13:54.629 exposes that the tradition they were defending 00:13:54.629 --> 00:13:57.090 was actually unconstitutional. It connects the 00:13:57.090 --> 00:13:59.029 rights of women directly to the rights of the 00:13:59.029 --> 00:14:01.870 LGBTQ plus community. It shows that these fights 00:14:01.870 --> 00:14:04.230 aren't separate. Both are fighting against the 00:14:04.230 --> 00:14:06.450 idea that your biology determines your legal 00:14:06.450 --> 00:14:09.870 status. In Feenstra, the argument was, my biology 00:14:09.870 --> 00:14:11.769 shouldn't stop me from controlling my own property. 00:14:11.929 --> 00:14:14.750 In Obergefell, it was, my biology shouldn't stop 00:14:14.750 --> 00:14:17.350 me from marrying who I love. It's the exact same 00:14:17.350 --> 00:14:19.860 thread of liberty. And it all hinged on that 00:14:19.860 --> 00:14:22.519 terrible law in Louisiana. If that law hadn't 00:14:22.519 --> 00:14:25.100 been so explicitly awful, and if Joan Feenstra 00:14:25.100 --> 00:14:27.879 hadn't fought it all the way to the top, RBG 00:14:27.879 --> 00:14:29.879 wouldn't have had that specific ammunition in 00:14:29.879 --> 00:14:32.759 2015. It really highlights the long tail of legal 00:14:32.759 --> 00:14:35.940 precedent. Joan Feenstra probably never imagined, 00:14:36.059 --> 00:14:37.779 while she was just fighting to keep her house 00:14:37.779 --> 00:14:39.860 from her husband's lawyer, that her struggle 00:14:39.860 --> 00:14:42.419 would help legalize gay marriage decades later. 00:14:42.659 --> 00:14:45.299 She just wanted justice for herself. But these 00:14:45.299 --> 00:14:48.039 cases become building blocks. The law is cumulative. 00:14:48.539 --> 00:14:50.759 It also makes you think about what settled law 00:14:50.759 --> 00:14:54.120 really means. I mean, in 1974, head and master 00:14:54.120 --> 00:14:56.440 was settled. It was just the way things worked. 00:14:56.539 --> 00:14:58.440 Everyone accepted it. It was the natural order 00:14:58.440 --> 00:15:00.700 of things. People likely rolled their eyes at 00:15:00.700 --> 00:15:02.779 John Feenstra initially, thinking she was tilting 00:15:02.779 --> 00:15:05.500 at windmills. And now we look back and shudder. 00:15:05.960 --> 00:15:08.100 It makes me wonder, and this is the provocative 00:15:08.100 --> 00:15:10.580 final thought I want to leave you, the listener, 00:15:10.639 --> 00:15:13.679 with today. What are the head and master laws? 00:15:14.269 --> 00:15:16.750 of our current time? That is the scary question. 00:15:17.009 --> 00:15:19.850 We look at 1979 and think, how could they possibly 00:15:19.850 --> 00:15:22.269 allow that? But what are the things we currently 00:15:22.269 --> 00:15:25.490 accept as just the way the world works, maybe 00:15:25.490 --> 00:15:28.710 regarding data privacy or how we treat minors 00:15:28.710 --> 00:15:31.480 in the criminal justice system? Or perhaps assumptions 00:15:31.480 --> 00:15:34.240 we make about intellectual property in AI. What 00:15:34.240 --> 00:15:36.240 are the systems we justify today with economic 00:15:36.240 --> 00:15:38.480 efficiency or tradition that will look completely 00:15:38.480 --> 00:15:41.779 barbaric to a deep dive listener in 2050? Exactly. 00:15:41.779 --> 00:15:43.740 We accept a lot of tradeoffs for efficiency, 00:15:44.000 --> 00:15:46.379 just like Louisiana accepted the tradeoff of 00:15:46.379 --> 00:15:48.139 women's rights for the efficiency of property 00:15:48.139 --> 00:15:50.299 transfers. I think we're going to find quite 00:15:50.299 --> 00:15:52.960 a few of those. History tends to judge the natural 00:15:52.960 --> 00:15:55.679 order pretty harshly in retrospect. It certainly 00:15:55.679 --> 00:15:58.179 does. Joan Feenstra proved that just because 00:15:58.179 --> 00:16:00.399 something is legal doesn't mean it's right. And 00:16:00.399 --> 00:16:02.159 just because it's tradition doesn't mean it should 00:16:02.159 --> 00:16:04.399 last forever. A lesson definitely worth remembering. 00:16:04.740 --> 00:16:07.039 Thank you so much for guiding us through this 00:16:07.039 --> 00:16:09.940 stack of history today. It was a wild ride from 00:16:09.940 --> 00:16:13.399 1974 to 2015. My pleasure. It's always good to 00:16:13.399 --> 00:16:15.860 look closely at the fine print. And to you listening, 00:16:15.980 --> 00:16:17.919 thanks for diving deep with us. We'll see you 00:16:17.919 --> 00:16:18.440 on the next one.