Women in Law, History and Literature: A Study of the Historical and Contemporary Legal Status of Women in American Society as Infused with the Liberal Arts
November 22–23, 2013
University of Miami
The course entitled “Women in Law, History and Literature” endeavors to address the legal status of American women as evidenced in common law, statutory materials and case law, in both a historical and contemporary fashion, utilizing an interdisciplinary humanities approach. The course is representative of the General Studies Curriculum at Richard Stockton College of New Jersey, which affords students the opportunity to “explore the world of knowledge, ideas, and issues, often in an interdisciplinary way” and “constitutes the core of the liberal arts.” (“Overview of all General Studies Programs,” www.stockton.edu). A course such as “Women in Law, History and Literature” is deemed a GIS, or capstone course, which is structured to be interdisciplinary and which seeks an integration of the human experience regarding a particular topic. (“Overview”). The subject of women’s legal status is particularly conducive to such an interdisciplinary humanities approach. Women’s status is determined only in part by common law, statutory law, and judicial decrees; societal expectations and cultural presumptions impact markedly on the manner in which women’s place in society is construed. Historical factors such as custom and cultural stereotypes are relevant to any discussion of women’s rights, for many aspects of women’s traditionally inferior position are not legally mandated. History can illuminate the presumptions upon which laws are based, and demonstrate the negative connotation of those presumptions, especially with regard to the laws created for women’s protection such as labor laws, alimony and custody preferences. Moreover, great literature reflects the community conscience and cultural values of society and can serve as predictors of changes in the law. The focus of much fine literature is upon the same moral and ethical conflicts regarding women which confront judicial systems. As observed by Gustav Radbruch in The Legal Philosophies of Task, 139 (Cambridge, MA, K. Wilk transl. 1950):
The quality which cannot but render law an alluring artistic subject is the variety of its inherent antitheses, the opposition of Is and Ought, of positive and natural law, legitimate and revolutionary law, freedom and order, justice and equity, law and mercy, etc. So those artistic forms which essentially express antithesis will be especially attracted to the law.
The objectives of the Women in Law, History and Literature course include the following: (a) Gaining factual knowledge regarding both the history and contemporary status of women in American society and (b) Learning to apply course material to improving thinking, problem solving and decisions, particularly with regard to issues of gender equality. Students will encounter a more humanistic approach toward the law and will examine the competing social policies and cultural presumptions which underlie much of our jurisprudence, especially with respect to women. Moreover, students will perceive that it is not misguided for women or any minority to work within a system to change the legal code because ultimately laws do influence norms and practices by guaranteeing rights to women and altering the manner in which women perceive themselves and are perceived by others. This article endeavors to illustrate the manner in which the liberal arts are integrated into a law class addressing women’s legal status in society. The specific tools that are employed in this class, examples of which are demonstrated below, include: a. readings from common law, statutory law, case law and a law review relevant to women’s legal status; b. historical readings that emanate from feminist position papers, letters and diaries; c. short stories and books from both the 19th and 20th centuries that address women’s role in society; and d. films that vividly portray the legal repression American women experienced, particularly in the 19th century.
Readings from Common Law, Statutory Law. Case Law and a Law Review Relevant to Women’s Legal Status.
The variety of legal resources pertinent to women’s status in society is manifold, commencing with the British common law imported into the United States and used as the foundation for American common law; statutory enactments of the various states and the federal government; substantial case law that addresses women’s ability to own their children or their property in the 19th century to the later cases addressing gender discrimination and sexual harassment, among many other issues such as spousal rape and the validity of palimony agreements; and the law review, scholarly, in-depth assessments of legal issues. Examples of sources that convey the stifling legal restrictions placed upon women in the 19th century include (a) Sir William Blackstone’s Commentaries on the Laws of England, (b) an example of The Married Women’s Property Acts enacted in the United States in the 1800s, (c) a variety of cases commencing with the 18th century case of Bissett v. Bissett (Maryland, 1761) and continuing with cases such as Reed v. Reed, 404 U.S. 71 (1971) and Williams v. General Motors Corporation, 187 F.3d 553 (1999), that illustrate the formidable battle women waged throughout the 20th century, and (d) a law review article I authored, “Sex Discrimination in the Legal Profession: Historical and Contemporary Perspectives,” 39 Valparaiso University Law Review 859-909 (2005).
(a) Blackstone’s Commentaries precisely portray the onerous restrictions placed upon women by the common law once they had entered the state of matrimony: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of her husband under whose wing, protection, and cover, she performs every thing.” Such “incorporation” meant that all civil liberties were denied women, that they were deemed property of their husbands, along with the home, cows, and chattel, and that they were denied rights to their own children who could be apprenticed without their consent, or left to the care of others who would serve as guardians upon the husband’s demise.
(b) The Married Women’s Property Acts enacted in the United States commencing in the 1830s served to free women from some of the constraints imposed by the common law of coverture wherein the women had essentially no legal existence separate and apart from that of their spouses. These statutes, enacted by many states throughout the 19th century, differed with regard to what rights were afforded women by virtue of the legislation, but in general sought to permit women to enter contracts, control real and personal property they inherited, and maintain wages. Many of the acts, such as that enacted by New York, made clear that the husband could not utilize the foregoing in satisfaction of his debts without the consent of his spouse. At the same time it is made clear to the students that not all states embraced this notion of women’s economic independence. Indeed, when Myra Bradwell, who had apprenticed as a lawyer, sought admission to the Illinois bar, the Illinois Supreme Court in 1869, denied her application premised “on the disability imposed by Bradwell’s married state, which arose from the law of coverture.” (Latourette, citing Morello). “In response to her brief, citing an erosion of coverture through a variety of Married Women’s Property Acts…the court denied her application a second time, grounding the decision in the fact that her status as a woman was not designed to occupy the public sphere, which constituted a sufficient barrier to admittance to the practice of law, as inherited from the common law in England.” (Latourette, citing In re Bradwell, 55 Ill. 535 (1869).
(c). Case law serves to vividly illustrate the manner in which women were denied their rights. A variety of 18th and 19th century cases are presented to the students which vividly reveal the formidable constraints upon women and the manner in which women, living in legal dependence, and lacking a separate legal existence from their spouse, were rendered unable to control any wages they earned, to enter contracts or to sue. While a husband generally had to obtain his wife’s consent to sell property she had inherited, such consent in an era where spousal abuse did not exist under the law, could be wrongly obtained. One of the cases employed in the course, Bissett v. Bissett, exemplifies the manner in which a spouse “cruelly beat and with opprobrious language” abused his wife until she agreed to convey to him her 1184 acres devised to her by her former deceased husband. Upon her husband’s demise, his brother obtained the lands and refused to reconvey them to the wife, notwithstanding his knowledge of the coercion employed to make her transfer title to the property. Later cases such as the landmark case of Reed v. Reed, 404 U.S. 71 (1971), in which Justice Ruth Bader Ginsburg played such a prominent role as a then law professor at Rutgers University-Newark, serve to impress upon the students that gender discrimination did not end with the 1920 right to vote, and that not until the Reed case did the U.S. Supreme Court rule a state statute unconstitutional under the 14th Amendment because it discriminated premised upon one’s gender. The case is quite revealing of societal attitudes: an Idaho statute automatically afforded preference to fathers in the case of a deceased child’s estate, even where the mother, such as the one in Reed, sought to serve in that capacity herself. The Idaho Supreme Court had upheld the statute when challenged by the mother premised upon the belief that the legislature had concluded men were better qualified to serve as an administrator. The clear presumptions underlying this decision – that men were more worldly, more business oriented – in an era where many women had joined the workforce, had obtained college degrees, and were seeking in record numbers to engage in graduate and professional study, is eye opening to students, many of whom presumed the battles for equality had surely been won by 1971.
The case of Williams v. General Motors Corporation serves as a further example of the type of case law utilized to inform students regarding women’s more recent legal status in society. Williams serves as an eye opener to students related to the issue of sexual harassment in the employment context. In this instance, Williams was exposed to a litany of incidents in the workplace, including being addressed as “Hey, slut,” several incidents where coworkers uttered sexually suggestive comments directed to her, compelled to take a midnight shift, found papers glued to her desk, denied breaks or keys to the office in contrast to other workers, and the like. Yet the federal district court, which examined each incident in isolation, deemed these incidents of sexual harassment, “while offensive, were not so severe or pervasive as to constitute a hostile work environment.” The Court of Appeals, Sixth Circuit, reversed, clarifying that pursuant to U.S. Supreme Court articulated standards, in order to raise a genuine issue of material fact as to whether a plaintiff was subjected to “severe or pervasive” conduct constituting a hostile work environment, the totality of the circumstances must be considered, with the lower court’s disaggregation of the incidents deemed inappropriate and a misapplication of the law. 187 F. 3d at 562.
(d). The law review that I utilize in this class is one I authored noted above entitled “Sex Discrimination in the Legal Profession: Historical and Contemporary Perspectives.” While it encompasses a review of the sex discrimination and sexual harassment cases lodged by female attorneys, it also provides historical underpinnings which highlight the cultural, religious and scientific stereotypes applied to women which deemed the “masculine, harsh and demanding” law profession as particularly inappropriate for the fairer, weaker and less intellectual sex.
Historical Readings that Emanate from Early Feminist Position Papers, Letters and Diaries.
Readings from these sources enrich the study of women’s legal status in society beyond what is conveyed through common law, statutory law and case law. They serve to both illuminate the presumptions upon which such laws were premised and convey in a more personal and evocative manner, the impact of such legal restrictions upon women. In discussing, for example, women’s nonexistent rights to higher education during much of the 19th century, students are exposed to the works of Dr. Charles Meigs, a noted and highly revered obstetrician in Philadelphia in the 19th century and a professor at Jefferson Medical School. Dr. Meigs espoused what has been termed the “small brain theory” with regard to women’s intellectual capacities. In his book, Females and Their Diseases, (1848), he compared a woman’s head to that of Apollo of the Belvidere: “A woman has a head almost too small for intellect but just big enough for love.” A letter from Eliza Southgate to her cousin Moses Porter wherein she indicates her interest in the law reveals the private intellectual aspirations of women who were compelled to conform to the 19th century vision of womanhood. (Marlene Stein Wortman, Women in American Law, Volume One, 1985, citing Clarence Cook, ed., A Girl’s Life Eighty Years Ago: Letters of Eliza Southgate Bowne, 1887).
But perhaps it is the “Declaration of Sentiments and Resolutions” crafted by the brilliant and farsighted Elizabeth Cady Stanton, a leader in the first feminist forefront for women’s rights, which most vividly captures the utter frustration, anger and determination fomented by the law’s restrictions placed on women. The Declaration, patterned directly after Jefferson’s Declaration of Independence, was presented at the first women’s rights convention held in Seneca Falls, New York in 1848 and it boldly set forth the legal deprivations to which women had been exposed and argued for the establishment of women’s rights. Noting that the history of mankind revealed a “history of repeated injuries and usurpations,” Stanton observed that men had denied women the right to elective franchise, compelled her to submit to laws “in the formation of which she had no voice,” and denied women rights which were extended to “the most ignorant and degraded men-both natives and foreigners.” The Declaration further lists the wrongs associated with the civil death doctrine to which the Married Women’s Property Acts endeavored to address, including the inability to keep her property and her wages or the guardianship of her children. Notably, Stanton observed that “He has monopolized nearly all of the profitable employments….[and] he closes against her all of the avenues to wealth and distinction which he considers most honorable to himself. As a teacher of theology, medicine, or law, she is not known.” The Declaration then establishes the framework of Resolutions for the women’s movement by articulating those goals for equal treatment it wishes to see achieved, including, among many others, the elective franchise, a recognition of women’s equality to that of men, and a nullification of all laws that place women in a position of inferiority. It is interesting for students to assess the stated goals to determine what goals have, in fact, been achieved.
Short Stories and Books from the 19th and 20th Centuries that Address Women’s Role in Society.
A wide variety of notable literary works exist which capture vividly the pronounced and confining legal restrictions to which women were exposed and just as significantly, the emotional impact of such repression upon the affected women. It is one thing to read and understand the “civil death” doctrine; it is another to witness its effects in a manner that explores the emotional repercussions of such restraints, particularly when the authors themselves experienced vilification for exhibiting women’s discontent in such an “unseemly” fashion. Among the stories and books that I employ are the following: “Dream of an Hour,” also referenced as “Story of an Hour,” and “The Awakening,” both authored by Kate Chopin, The Women’s Room by Marilyn French and The Handmaid’s Tale by Margaret Atwood. Chopin’s work, particularly with regard to “The Awakening,” is often touted as a work displaying a woman’s “awakening” to marital infidelity and its accompanying sexual exploration and freedom. It is true that Edna engages in such behavior; but it represents, as well, an attempt by a woman to break from the rigidly structured cultural mores/standards with which women were expected to comport. Further, the works illustrate beautifully the notion of civil death and women as property; Edna’s spouse, Leonce, is displeased when his “property” seeks to devalue her pristine white skin, the epitome of 19th century upper class beauty, by tanning on the beach. Louise Mallard, the wife of Brently in “Dream of an Hour,” experiences a life strictly regulated by her husband that includes no travel, no exploration, no independent thoughts; he even rigidly enforces the 6 pm hour at which time she is permitted to enjoy, through his narration, the wonders of the world as viewed through the stereoscope. The Women’s Room depicts the strides, or lack thereof, that women had achieved by the 1970s, characterizes the still, rather rigid stereotypical roles that defined a married woman, and examines the equality promised in the 70s by the women’s movement. Lastly, The Handmaid’s Tale, the futuristic tale of a dystopian society which has adopted policies strictly regulating women’s bodies and rights, exhibits a clear reversion to the historic and earlier repression of women and attendant denial of rights, and provides an excellent vehicle for students to discuss and assess how firmly grounded women’s rights are in today’s society.
Films that Portray the Legal Repression Women Experienced in the 19th and 20th Centuries.
There are several films that relate well to the issues discussed in this course and they include, among others: “Jury of Her Peers,” premised on the short story by Susan Glaspell; “Doll’s House – The Destruction of Illusion,” based on Henrik Ibsen’s three act play; and “The Life and Times of Rosie the Riveter,” a documentary film regarding women’s involvement in World War II industrial production. The film premised on Chopin’s “Dream of an Hour,” titled “The Joy That Kills,” is one that powerfully conveys the notion of women as property, as victims of repression and as subjects of the civil death doctrine. In the film, every nuance of Louise’s life is regulated by her authoritative and oppressive husband, a businessman who prizes the acquisition of property; the irony, of course, is that by marrying Louise, he has gained control of two properties: both a beautiful woman and her inherited New Orleans mansion. When confronted with the news of his alleged death in a train accident, her horror within the hour converts to a new found joy at the contemplation of a life of freedom and independence. She exultantly utters the words, “This is the first day of my life, and I want to live it forever.” Her death at the shock of his reappearance shortly thereafter, attributed to the “joy” of his return by her peers, is fully recognized by the students as a result of the crushing blow that her newfound sense of freedom and independence will never be realized. It communicates, in a fashion that no law text alone can convey, the brutal and repressive reality of women’s legal status in the 19th century.
The legal status of women in the United States is clearly a topic which can be addressed fully in one’s class by employing solely a plethora of legal resources including British and American common law, statutory enactments, case law and the law review. Infusing such a course with the liberal arts, however, utilizing the resources described above, serves to both enrich the offering by enhancing it with a multidisciplinary perspective, and to deepen and expand students’ understanding and perceptions regarding the cultural, religious and scientific stereotypes underlying gender discrimination.