Law, Justice, and Society:
A Sociolegal Introduction
Chapter 12
Women and the Law
(by Mary K. Stohr)
Women and the Law
Feminist Legal Theory
• feminism is a set of theories and strategies
for social change that takes gender as its
central focus to understand social
institutions, processes, and relationships
• feminist jurisprudence is the practice of
examining and evaluating the law from the
feminist perspective
Women and the Law
Feminist Legal Theory (cont.)
• embraces conflict view
• patriarchy: sociocultural system that is male
dominated at all levels
• law is a mirror of patriarchy
Women and the Law
Feminist Jurisprudence
• reformist/radical
– reformist: liberals who want to retain current
legal system and reconfigure it
– radical: present system should be abandoned
• sameness/difference
– should women be treated equally or differently?
– compromise position: law must accept relevant
gender differences but should not focus on the
differences; rather, focus on their consequences
Women and the Law
Women and the Law Throughout History
• Greek
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ambivalent
earth goddess creator
soon male gods assumed rational role
Homer (800 BCE)
Plato and Aristotle
Athens versus Sparta
in general, laws were repressive
Women and the Law
Women and the Law Throughout History
(cont.)
• Roman
– Cicero
– Twelve Tables of Roman law
– women were minors of their fathers or
husbands
• Medieval Europe--feudal system
– subjugated state supported by church theology
– “natural state” ordained by God
Women and the Law
Women and the Law Throughout History
(cont.)
• Renaissance
– women seen as virtuous and not worldly
– laws kept women in the home to protect them
• sixteenth century
– Protestant faiths reinforced concept of domestic
patriarchy
– men were sovereign rulers in politics and home
Women and the Law
Women and the Law Throughout History
(cont.)
• Thomas Hobbes and John Locke
– concede some rights to women
– still subordinate to men in all matters
– women invisible to political writers (including
Rousseau)
• Wollstonecraft argued that women would
not be inferior if given the same
opportunities as men
Women and the Law
Suffrage and Other Basic Freedoms
• efforts to secure legal standing for women throughout
the nineteenth and twentieth centuries in Europe and
the United States were conditioned by sexist views
• the U.S. Founding Fathers paid little attention to pleas
of their wives to allow women the vote
• slaves sexually exploited by masters
• women given the right to vote in Wyoming and Utah
territories and their subsequent states
• women given the right to vote in Colorado and Idaho
• rest of the country waited until 1920 and the
Nineteenth Amendment
Women and the Law
Suffrage and Other Basic Freedoms (cont.)
• in 1872 Susan B. Anthony and fourteen other
women were on trial for illegally voting
• found guilty when the judge instructed the jury to
do so
• the judge did not make her pay her fine or serve
time
• her attorney bailed her out of jail
• why did they do this?
Women and the Law
Suffrage and Other Basic Freedoms (cont.)
• International Woman Suffrage Conference in 1902
– in Washington, D.C.
– organized by Elizabeth Stanton, Susan B. Anthony, and
Carrie Chapman Catt
– five countries sent delegates
– next meeting was in 1904 in Berlin
• Declaration of Principles
• major result of conference was creation of the
International Women’s Suffrage Alliance
Women and the Law
Suffrage and Other Basic Freedoms (cont.)
• other rights denied women during the 1920s,
1930s
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enslavement
sold for marriage/prostitution
right to deal with property and earnings
arranged marriages
mothers had lesser rights than fathers
less education and training
work restricted to traditional roles; pay was less
holding public office
Women and the Law
Suffrage and Other Basic Freedoms (cont.)
• rights were gained through grassroot feminist
work
• first wave of feminism achieved voting rights
• second wave focused on other basic rights
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property
education
employment
male violence against women and children
• role of the USSC
Women and the Law
Women as Human and Person
• women have been legally and culturally
considered to be property
• as property, a woman can be bought, sold,
replaced, traded, etc., whenever convenient
• if women follow these cultural mores, they are
"madonnas"; if they do not, they are "whores"
• Gage’s explanation of the witch hunts
Women and the Law
Women as Human and Person (cont.)
• Brownmiller’s history of rape
• U.S. courts’ resistance to legal protection against
physical and sexual abuse and their link to
property rights
• petite treason in England
Women and the Law
Women as Human and Person (cont.)
• at times in American history women were allotted
more rights than previously, but such rights were
soon taken away
• during colonial period, free white women could
own property and engage in business
• some colonies allowed unmarried women with
property to vote
Women and the Law
Women’s Work and Other Legal Matters
• Reed v. Reed, 1971
– intermediary scrutiny standard of review
– gender/sex is a quasi-suspect class
• Nguyen v. INS, 2001
– children need mothers more than fathers
– satisfies sameness feminists
• international standards
– preserve differences while protecting economic and
political participation
Women and the Law
Women’s Work and Other Legal Matters
(cont.)
• Article 11 of the Convention on the Elimination of
All Forms of Discrimination Against Women
– not yet ratified by United States
• first wave of feminism: voting rights
• second wave of feminism: other basic rights
Women and the Law
Women’s Work in Law
• social barriers have kept women from working in
the law
• however, women have historically participated in
law to some limited degree throughout U.S.
history
– Margaret Brent
– Elizabeth Freeman
– Lucy Terry Prince
• women were excluded from clerkships, the
ordinary means of entering the legal profession
Women and the Law
Women’s Work in Law (cont.)
• exclusionary underpinnings were the beliefs that
feminine characteristics are not suited for the
practice of law and that a woman’s place is in the
home
• women viewed as lacking logical capacity
• accused of being overly subjective and emotional
• women were not full citizens, and so it would be
paradoxical for them to practice law
Women and the Law
Women’s Work in Law (cont.)
• exceptions:
• Arabella Babb Mansfield and Myra Bradwell
passed the bar in 1869
– Bradwell v. Illinois, 1873
• Lemma Barkloo and Phoebe Cousins were
admitted to Washington University Law School in
1869
• Ada Kepley graduated from University of Chicago
Law School in 1870
Women and the Law
Women’s Work in Law (cont.)
• Charlotte Ray, first African American
woman, was admitted to the bar in 1872
• Robert Morris, first African American man,
appointed as magistrate judge in Boston in
1852
• Esther Morris, white woman, appointed as
justice of the peace in a mining camp in
Wyoming in 1870
Women and the Law
Women’s Work in Law (cont.)
• not until 1918 were women allowed to join the
ABA
• not until 1920 were women allowed on all state
bars
• not until 1928 were women allowed to enter
Columbia Law School
• not until 1950 were women allowed to enter
Harvard Law School
• law schools continued to discriminate against
women
Women and the Law
Women’s Work in Law (cont.)
• discrimination tempered by second wave of
feminism
• passage of Title VII Civil Rights Act of 1964
• passage of Equal Employment Opportunity Act of
1972
• lack of bona fide occupational occupations in
criminal justice systems
• Title IX of the Higher Education Act
Women and the Law
Women’s Representation in the Legal System
• more women applying for law school now than
before
• gendered experiences:
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men expect to work in a law firm or for a company
more likely to submit to law review
women expect to work for nonprofit or legal services
feel less confident in their legal skills
• female law professors are underrepresented
• presidents more willing to appoint women to
federal judgeships
Women and the Law
Women’s Representation in the Legal System
(cont.)
• despite inroads, barriers are still apparent
• women lawyers are underrepresented in
judgeships, full partnerships in legal firms, law
school faculty
• the "mommy track" effect
• latent sexism
• women outperform men in all educational tracks
except law school
– differential treatment in school
Women and the Law
Women’s Representation in the Legal System
(cont.)
• still, there are more similarities than differences in
experiences
• job satisfaction
• job value
• attitudes about punishment issues and defendants
• variance explained by promotional opportunities
Women and the Law
The Bias Studies
• women defendants and litigants face an uphill
battle
• manifest in the perceptions and practices of
courtroom actors
• domestic violence
• sexual assault
• divorce
• treatment of female attorneys and judges
• custody discrimination against men
Women and the Law
Law, Equity, and Justice
• the law is androcentric, and therefore female
victims of male crimes will be viewed through
masculine lenses (Smart, 1989)
• also, as more women enter the workforce,
feminine traits such as cooperation and support
will make inroads against masculine traits of
adversity and competition (Gilligan, 1982)