Women and the Law

Despite chivalrous claims of protecting the "fairer sex," the law deals more harshly with women than with men
More

The United States Constitution once blatantly described the black man as three fifths of a man and the Supreme Court decided that black people did not qualify as "citizens." Women. n our legal history have not been treated much better. Most sex-discriminating laws have been explained as "protective" of women; women's innate inferiority has been assumed. The Supreme Court made this clear in 1908:

...history discloses the fact that woman has always been dependent upon man . . . looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality she is properly placed in a class by herself...
Employment

Professional women have come a bit of a way since the United States Supreme Court (in Brad­well v. Illinois, 1872) upheld a state law barring women from the practice of law, stating:

Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.

But statistics on earnings still reveal appalling discrepancies between (in descending order) the salaries of white men, black men, white women, and black women. Hour- and weight-limitation laws and minimum-wage laws for women are, even today, defended by trade union representatives. But bigotry and sexism, reinforced through business, government, and trade union delinquency, are being challenged. Women's groups are demanding enforcement of Title VII of the Civil Rights Act of 1964 (as many as half the complaints to the Equal Employment Opportunity Commission in hiring discrimination are coming from women), and of the Equal Pay Act of 1965. Both pieces of legislation were hotly contested in Congress. A 1969 U.S. Court of Appeals decision in the- Colgate-Palmolive case ruled that employers my not exclude women from jobs requiring the lifting of thirty-five pounds or more. (These laws have been on the books for years, although any woman can tell you that her two-year-old child generally weighs more.)

As close to our own time as 1948, the Supreme Court reaffirmed its protective approach in not allowing a woman to be a bartender unless she was "the wife or daughter of the male owner." The Court explained:

The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of liquor traffic. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.
Civil rights

English common law provided that juries were to be composed of twelve good men. To the present day, the U.S. Supreme Court (contrary to its ruling regarding black people) has not ruled it unconstitutional for women to be excluded from a jury, although a recent lower federal court (in White v. Crook, 1966). has so held.

Women are not covered in the public accommodations section of the Civil Rights Act, nor does the law currently protect them from being discriminated against by schools or universities. A group of women law students at New York University Law School, as recently as 1969, had to petition their school to open the Root-Tilden scholarships, $3500 yearly stipends which had formerly been restricted to "young men who give promise of becoming outstanding lawyers." Dorms, of course, are often still segregated, and colleges pretend to be able to exercise much more authority over their women than their men students. Needless to say, women did not secure the right to vote until the Nineteenth Amendment in 1920, fifty years after it had been granted to men of any race.

=

Marital relationship

Under the English law of "coverture," the husband and wife were "one." And, as justice Black said (U.S. v. Yazell, 1966), "the one is the husband." According to the doctrine of coverture, the woman lost her legal existence upon marriage. Not only did she lose her name and become known by her husband's name, but she also lost her right to sue in a court, to sign a binding contract, to manage her property. (She was treated by the courts together with children and insane people.) She had to live at the domicile of her husband, who had control of where it should be. In many areas, the laws of coverture have been wiped off the books, but their legacy in practice remains. Alimony is looked upon as an advantage the woman has, and perhaps an unfair advantage. Some feminists do not like the idea of alimony, and some, such as Betty Friedan, suggest, instead, a form of severance pay upon divorce. Other substitute ideas are (1) payment, perhaps $75 a week, to the spouse who does the housework, (2) unemployment money for a wife and mother who gets divorced, (3) marriage insurance. Other feminists, such as Flo Kennedy, refuse to give up the concept of alimony, saying that women should not give up the little they have before they secure equality in all other ways.

Welfare law

One of the most flagrant abuses in recent years has been the searching of homes to find out if a welfare mother is having a sexual relationship, and, if she is, then cutting her off welfare. Welfare investigators conduct "night raids," "bed checks," and "operation week-end" searches, sometimes at the home of a single welfare recipient, often as a mass nighttime operation. The stated purpose is to determine whether there is an unreported man in the home of a woman receiving welfare or aid to dependent children. The effect is clearly to discourage a permanent relationship for a woman with children who needs welfare.

The raids, which sometimes involve two welfare investigators blocking exits, then searching beds, children's rooms, attics, and medicine chests for evidence of a man's presence in the home, can result in denial of further welfare payments or lay a basis for charging the woman with welfare fraud.

In King v. Smith, the case in which the U.S. Supreme Court finally discredited the "substitute father" rule, a lawyer representing a welfare mother questioned a casework supervisor. It was developed that even if a woman cohabited outside the home with the same man once in two months with an intention to continue the relationship, welfare aid could be stopper!. Lawyers had thought that he "man-in-the-house" rule had been laid to rest. But the case of Lewis v. Stark, under consideration by the Supreme Court, threatens to revive the rule.

Criminal law

>We see sex discrimination in the very definition of crimes. Legislation and case law still exist in some parts of the United States, permitting the "passion shooting" of a wife by a husband; the reverse, of course, is known as homicide. The U.S. Supreme Court recently considered the case of a girl imprisoned for "lascivious carriage" under a 1905 Connecticut law authorizing imprisonment of young women if they are "in manifest danger of falling into habits of vice or leading a vicious life." Laws also exist providing for longer jail sentences for the same crime. A Pennsylvania court, in Commonwealth v. Daniels (1968), has recently held such unequal sentences to be unconstitutional.

One of the areas where the criminal law operates most discriminately is prostitution. Despite the tact that a recent New York law makes the "John," or customer, guilty as well as the prostitute, the New York District Attorney's office sees fit not to prosecute the male customer but only the woman he exploits.

Reproduction In many states, dispensing birth-control information is a crime. William Baird faces five years in jail in Massachusetts for handing someone a can of contraceptive foam. Over two hundred women sued in October, 1969, to have the New York State abortion laws declared unconstitutional. The laws provide that a legal abortion may be performed only when necessary to preserve the life of the woman. In California (the Belous case) and in Washington, D.C. (the Gezell case), similar laws have been declared unconstitutional. Women are now demanding the right to control their own bodies, and themselves to make the decision whether to bear a child. These abortion laws were passed by predominantly male legislatures in the days when women did not have the right to vote. Lawsuits can also be used as an organizing tool. The abortion law suits, in addition to being effective in the courts, have unearthed organizing potential; and people who had never before realized their common oppression are now struggling together.

Jump to comments
Presented by
Get Today's Top Stories in Your Inbox (preview)

Adventures in Legal Weed

Colorado is now well into its first year as the first state to legalize recreational marijuana. How's it going? James Hamblin visits Aspen.


Elsewhere on the web

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register. blog comments powered by Disqus

Video

Adventures in Legal Weed

Colorado is now well into its first year as the first state to legalize recreational marijuana. How's it going? James Hamblin visits Aspen.

Video

What Makes a Story Great?

What makes a story great? The storytellers behind House of CardsThis American LifeThe Moth, and more reflect on the creative process.

Video

Tracing Sriracha's Origin to Thailand

Ever wonder how the wildly popular hot sauce got its name? It all started in Si Racha.

Video

Where Confiscated Wildlife Ends Up

A government facility outside of Denver houses more than a million products of the illegal wildlife trade, from tigers and bears to bald eagles.

Video

Is Wine Healthy?

James Hamblin prepares to impress his date with knowledge about the health benefits of wine.

Video

The World's Largest Balloon Festival

Nine days, more than 700 balloons, and a whole lot of hot air

Writers

Up
Down

More in National

More back issues, Sept 1995 to present.

Just In