Women, Power, and the Law

From Trial Magazine, February 1990

Historically, women and power were mutually exclusive terms. Women traditionally held power only derivatively and experienced it only through their men – fathers, husbands, sons. The hand that rocked the cradle was allowed to rule the world only when it belonged to a queen.

Women have hidden their lights under millions of bushels because they could not exercise power directly. Women were presumed to be manipulative, and even then they were depending on someone with real power whom they could manipulate. If they were smart, they were called shrewd; if they were strong, they were called unladylike; if they were aggressive, they were called bitches.

Much has changed since then, but not enough. It may be helpful to keep in mind what one exceptional woman had to say about the decade of the ’80s. “It must be a time,” she said, “when equality becomes reality and our nation does what up to now has been left undone.” That’s impressive – particularly when you realize that the woman calling for equality was Abigail Mams, and the decade she was talking about was the 1780s.

But for far too many women, in far too many ways, her words are as applicable now as they were then. The equality Adams championed has not yet been realized. The founding fathers did not hear what Abigail Adams and the other founding mothers were trying to say to them.

Adams was a patriot, a bright and articulate woman. But at the time that America was writing the rules on which it would build, she still had to leave the room with the other “ladies” when the men lit up their cigars and got out their port and started talking about the serious issues of the day. And on one of those days, as she sat home in Massachusetts while her husband, John, was in Philadelphia with the other gentlemen declaring independence, she wrote him a letter – probably the first “Dear John” letter in American history.

“Dear John,” she wrote, “in a new Code of Laws which I suppose it would be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than (were) your ancestors.” Today that is known as consciousness-raising.

She continued, “If particular care and attention is not paid to us we are determined to foment a rebellion and will not hold ourselves bound by any laws in which we have no voice.” That’s known as hell-raising.

Husband John replied promptly – the first “Dear Abby” letter in American history – and said that men who would stand and fight the tyranny of a powerful king would never give in to the despotism of the petticoat. Abby’s advice was ignored.

Betsy Ross was one of the first victims of that decision. Every one knows Betsy Boss made the flag, but what is generally not known is that she spent the rest of her life trying to collect her fee for it. The soldiers got paid, the merchants got paid, the farmers got paid, but who would think of paying a woman for a little extra sewing? She did receive a message from the founding fathers that said, and I quote, “Our nation will be forever in your debt.” Perhaps they were trying to tell her that she might as well stop sending the bill.

Molly Pitcher also found out about the double standard. Everyone knows her story, too. In the Revolutionary War, Molly carried water to the fighting troops and then took over the firing of her husband’s cannon when he was injured. But there’s one part of her story that the history books leave out. All the men who survived the Battle of Monmouth in 1778 received a pension, but Molly’s petition for a pension was lost in some bureaucratic shuffle-perhaps processed by the same office that handled Betsy Ross’s bill for the flag. Molly Pitcher petitioned for 44 years. Most of those years she was a widow, her husband having died from the injuries that he received in that battle.

Finally, Pennsylvania voted her a pension of $40 a year shortly before her death. However, to make amends, she was buried with honors-wrapped in the flag for which Betsy Ross Was still trying to collect her fee. So much for equal pay for equal work and pension rights.

I have studied the history of women in the law over the years, out of both curiosity and personal interest. I have learned that society has traditionally been divided almost equally into two parts, men and women, and that society has treated the sexes differently at one time or another in every area of human endeavor. The justification for treating them differently has its roots in biological differences relating to procreation.

Our system of laws is built generally on English common law. English common law was written down principally by a man, Sir William Blackstone. He had a very explicit view of women and is quoted as having said, “Husband and wife are one and that one is the husband.” ¹

Women were precluded from participation in public life because it was presumed that they would have nothing to offer and also to prevent illicit connections. The law traditionally divided women into two classes, “lady” and harlot, and there were only two kinds of “ladies” under the law -chaste unmarried females and faithful wives.

These divisions were everywhere apparent, but nowhere more apparent than in the criminal law. Ladies were statutorily presumed to be childlike, dependent, and supremely sensitive. A man in Alabama could get 6 months of hard labor for being rude to a lady.²

Non-ladies, on the other hand, were perceived as a grave danger to all that was noble and stable-fallen women whose presence posed a threat to the public health and welfare. A number of laws were and are directed toward those women. In North Carolina, a lewd woman could not go within 3 miles of a college or boarding house. Presumably that was the measure of safety the legislators thought appropriate.³ In Maryland, it was unlawful fur a woman to use a musical instrument to solicit funds other than for charity.⁴

Legislators also went to great lengths to prevent ladies from falling into the “harlot” category. All 50 states had laws against seduction. The crime of seduction was the act of using artful persuasion to influence a woman of previously chaste character to depart from virtue.⁵

The underlying assumption, of course, was that women – even of mature age – were not capable of consenting to non-marital sexual relations. A comment on those laws was given by a woman named Tennessee Clafin in the 1870s. She was the sister of Victoria Woodhall, the first woman to run for president of the United States, on the Free Love ticket.

Clafin said, “There are undoubtedly women who are weak and silly and simple and who are taken advantage of by designing men. Until we have such systems of education as will prevent women from being weak and silly and simple, it is undoubtedly right to have such laws. But we also have ninnies among men, and ought we not therefore to have laws for their protection? An act of the legislature entitled ‘An Act for the Protection of Ninnies Against Designing Women’ would be refreshing.

Historically, there were also differences in the ages at which people were presumed to be capable of certain acts. The age for marriage was always much lower for a woman, on the assumption that the goal of a woman is to marry – and, frankly, the sooner the better.⁶

Until the mid-1800s, this nation adhered strictly to English common law, and women were denied basic human rights without challenge. Besides not having the right to vote, married women could not own land, could not make a contract, had no rights to their own earnings, could not sit on juries, and in divorce had no rights to support from their former husbands or to the custody of their children. In fact, the presumption that a married woman acted only at the direction of her husband was so strong that if a married woman committed a crime and her husband was in the vicinity, he could be tried and convicted for that crime.

Female children were excluded from public schools for reasons that sometimes sound painfully familiar. It was suggested that educating women would rob them of the timidity and the delicacy inherent in the female sex. Many people also held deep moral and religious convictions concerning the natural inferiority of women, bolstered by the conclusions of medical science that because women had smaller brains than men, the attempt to teach them anything but the domestic arts was certain to be futile.⁷

Myra Bradwell was refused admission to the bar in Illinois in 1872. She appealed her case all the way to the United States Supreme Court, which set the tone for the review of cases involving women’s rights for 100 years. Myra Bradwell was told to remain in her place-and that place was not at the bar. “The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”⁸ Myra was single.

The question of whether or not women should serve on juries has produced some of the most outrageous language in the judicial annals. In 1944, the North Carolina Supreme Court con-firmed what feminists have long suspected-namely that the word “men” means only people who are male. The court stated that the constitutional provision guaranteeing a trial by 12 good and lawful men meant that women were not qualified to serve.⁹

More recently, in 1971, a court in New York upheld a provision of the law that gave particular exemptions only to women. In so doing, the court explained, “Plaintiff is in the wrong forum. Her lament should be addressed to the 19th Amendment state of womanhood that prefers cleaning, cooking, rearing of children, television soap operas, bridge and canasta, the beauty parlor and shopping to becoming embroiled in plaintiff’s problems with her landlords.”¹⁰

Can you imagine the justifiable outrage that would have resulted if the judge had spent his vitriol on a racial or ethnic minority?

Women’s Work

State laws also affected women in employment. Several states limited the number of hours women could work in a day: 8 hours in Ohio and 10 hours in Kentucky, where women were presumably hardier.

Laws also kept women out of certain occupations. Eight states by statute prevented women from working in mines because it was perceived as bad luck to have a woman in a mine. Ohio had a particularly extensive list of things that women could not do for a living. A woman could not be a meter reader, a section hand, a freight elevator operator or a shoe shiner. ¹¹What was the legislature considering when it passed a law that said that women could not shine shoes? This is not heavy work.

Women could not be baggage handlers or employed in any occupation that required the repeated lifting of more than 25 pounds. That law was declared unconstitutional in 1972 but remained on the books of the state of Ohio until about 1984. I am convinced that employers continue to hide behind that law to deny women equal employment opportunity.

Some states were also very explicit about the position of women within the family. In Georgia, the domestic relations code began with these words, “The husband is the head of the family and the wife is subject to him. Her legal existence is merged in the husband except insofar as the law recognizes her separately either for her own protection, or her benefit, or for the preservation of the public order.” Then, lest women misunderstood, the code editor added note. “It is well settled in Georgia that where the husband and wife reside together whatever else she may be the head of, he is the head of the family.”¹²

In Arkansas, there is an old case that says that the husband has a right to regulate the household expenses and to decide which visitors the family can receive.¹³ Also in Arkansas, the husband is presumed to own all the household goods – the dishes, the knives, the forks, the sheets – and he can take them with him if he goes.¹⁴

One of my favorite cases, which I call the cookie jar case, is a District of Columbia case. After the parties married, the woman, who was employed outside the home, became a full-time homemaker and her husband provided her with a weekly amount to buy household necessities. She was frugal and was able to out aside some of the money as a result of her personal hard work; she invested it in the stock market.

The marriage ended. At that time, the stock portfolio the woman had amassed was valued at $25,000. The question before the court was who owned the stock portfolio. The answer: the husband, and only the husband, because his contribution was financial; hers was not.¹⁵

Tender Years

Children, too, have traditionally been adversely affected by stereotypes written into the law. Oklahoma had a law that said when a child is of tender years, the mother will be the preferred custodian, but if a child is of an age to require education and preparation for labor or business, the father is the preferred custodian.¹⁶ That particular statute was upheld against a fourteenth amendment challenge that took place within the last couple of years.¹⁷

Texas and Utah had laws until 1971 that basically said it was permissible for a man to shoot his wife’s lover if he caught them in an adulterous act. It was called passion shooting. The reverse of this was called homicide.¹⁸

Kentucky had a law that said, “No female shall appear in a bathing suit on any highway unless she is escorted by at least two officers or armed with a club.” To make everything perfectly clear, this law was amended as follows: ‘The provisions of this statute shall not apply to females weighing less than 90 pounds or females exceeding 200, or to female horses.”

Progress Report

In the last couple of decades there has been a new spirit of activism among women a sense of common purpose. I think every woman has been affected in some way by the changes that have occurred, and therefore every man who cares about any woman has been affected in some way.

There are a lot of new laws: the Equal Pay Act, Title VII, and Title IX of the Education Amendments of 1972,¹⁹ now revitalized despite the Supreme Court’s efforts to destroy them.

Title IX is of special interest. It recognized that despite the fact that boys and girls were all sitting in the same classrooms the education they were getting was markedly different. Let me give you an example.

When I was a high school sophomore, was given a test called the Strong Vocational Interest Blank. It was a machine-graded test to determine students’ potential career choices. That test came in two colors; pink and blue. On the blue test, boys were asked to choose between such things as a preference for designing machine or for supervising the production of a machine. Girls were asked to choose between a preference for reading fashion magazines or household magazines. Girls were also asked to choose between marrying a corporate executive and a rancher. That test now comes in a neutral cream color, and that is because of Title IX.

There has also been progress in terms of the Equal Credit Opportunity Act, which prohibited discrimination because of race, color, religion, national origin, sex, marital status, or age.²⁰

As a young lawyer I used to get calls from women who were employed outside the home and who wanted to participate in the purchase of homes -which I thought was a reasonable thing for them to want to do. They found that if they wanted their income to be counted toward qualification for a home, the bank asked them to sign a contract in which they promised not to get pregnant. Women asked me, “What shall I do?” My answer was always the same, “‘Go ahead and sign. How do they think they are going to enforce that?” That is no longer possible in this nation, because we have a law that prohibits it.

The country has also made progress in dealing with the special needs of poor women, minority women, older women, and lesbian women and has focused on the problems of rape and wife beating. These changes were the result of women acting together for themselves and their sisters and being joined by fair-minded men.

Nobody handed these things to women. Women earned them. They got power, and they used it. That’s the good news. This is the bad news: Women’s legal gains have not been translated into economic gains.

By the latest figures, women still earn 65 cents for every dollar that a man earns in the same occupation. A man with an eighth-grade education will earn in his lifetime more than a woman with a college education will earn in her lifetime. According to a 1984 Census Bureau report, male attorneys earn a median income of $753 a week. Women attorneys earn $504 a week.

All the agencies that women expect to enforce the rights of comparable pay for comparable work are underfunded, understaffed, and overworked. And in some cases they are peopled by those who want to destroy the laws that they are supposed to be enforcing.

Eyes on the Prize

Women lawyers must not lose sight of their goals. Like it or not, women lawyers are role models and role challengers, who have the tools and the talent to move themselves and other women forward. Like it or not, women lawyers are the elite by virtue of their educational privileges. That gives them a grave responsibility.

One important responsibility is to help and encourage other women. Women lawyers must not be queen bees. The queen bee is a woman who is not helpful to other women. She is usually a woman in a nontraditional occupation who denies other women membership in the group. She is the woman who perceives that she made it on her own, and her value depends on being the first woman or the only woman -on her uniqueness.

In addition, as advocates, women lawyers speak for others and must be skillful, competent, and powerful. When women lawyers go into court, they cannot fumble. A woman who does poorly is perceived as doing poorly because she is a woman. On the other hand, a woman who does well is perceived as an exception. I know that is inconsistent; it is, nonetheless, true.

It is also important that women lawyers develop networks for personal and emotional support and for the exchange of information. Women lawyers must accept their responsibilities as mentors and teach other women how the system works. They must support other women’s competencies. They must be visible and vocal challengers of stereotypes and takers of risk. Women lawyers, as they climb the ladder of success, must reach down and give a hand to other women. Then when they reach the top, they won’t be lonely.

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Footnotes:

1. W. BLACKSIONE, COMMENTARIES ON THE LAWS OF ENGLAND (7th ed. 1775).
2. ALA. CODE tit. 14 & 11 (1958), repealed effective 1980.
3. N.C. GEN. STAT. *14-198 (Supp. 1974), repealed m 1975.
4. MD. GEN. PROV. CODE ANN0. art. 27 & 415 (1971).
5. Greenman v. O’Riley, 108 NW. 421 (1906); eg., ALA. CODE tit. 14, 419(1958); IOWA CODE 700.2 (1975); NEB. REV. STAT 28-937 (1%5); VA. CODE 18.1-41 (1960).
6. L. KANOWITZ, WOMEN AND THE LAW-THE UNFINISHED REVOLUTION 11(1969).
7. E. FLEXNER, CENTURY OF STRUGGLE-THE WOMEN’S RIGHTS MOVEMENI IN THE UNITED STATES 23 (1972).
8. Bradwell v. Illinois, 83 U.S. 130, 141 (1872).
9. State v. Emery, 31 S.E.2d 858 (1944).
10. DeKosenko v. Brandt, 313 N.Y.S.2d 827 (Sup. Ct. 1970) aff’d, 318 N.Y.S.2d 915 (App. Div. 1971). See also National Org. fbr Women v. Goodman, 374 F. Supp. 247 (S.D.N.Y. 1974), again upholding the New York Exemption Statute; and N.Y. Jud. Law 599.7 (McKinney 1968), finally repealed in 1984.
11. OHIO REV. CODE ANN. 4107.43 (Page’s 1973), repealed effective 1982. Ruled in violation of the U.S. ‘Constitution and Title VII in 1972.
12. GA. CODE ANN. 53-501 (1974).
13. Melton v. State, 264 SW. 965 (1924).
14. ARK. CODE ANN. 55-411.
15. Hardy v. Hardy, 235 F. Supp. 208, 211 (D.D.C. 1964).
16. OKLA. STAT sit. 30, 11 (1976).
17. Gordon v. Gordon, 577 P.2d 1271 (Okla. 1978), cert. denied, 439 U.S. 863 (1978); underlying statute, OKLA. STAT. sit. 30, 11 (1955), repealed in 1983.
18. TEX. PENAL CODE ANN. art. 1220 (Vernon’s 1966), repealed by implication by TEX. PENAL CODE ANN. 9.31-.33 (Vernon’s 1974), which set out defenses against charges of homicide; UTAH CODE ANN. 76-30-10(4) (1953), repealed by implication by UTAH CODE ANN., 76-2-402 (1973).
19. Equal Pay Act, 29 U.S.C. 206(d)(1) (1982 & Supp. V 1987); Title VII, 42 U.S.C. 2000e to 2000e-17 (1982 & Supp. V. 1987); Title IX of the Education Amendments, 20 U.S.C. & 1681-1686 (1982 & Supp. V 1987). ‘
20. 15 U.S.C. 1691-1693 (1988).