1. Law, Justice, and Society:
A Sociolegal Introduction
Chapter 12
Women and the Law
(by Mary K. Stohr)
2. 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
3. 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
4. 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
5. Women and the Law
Women and the Law Throughout History
• Greek
– ambivalent
– earth goddess creator
– soon male gods assumed rational role
– Homer (800 BCE)
– Plato and Aristotle
– Athens versus Sparta
– in general, laws were repressive
6. 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
7. 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
8. 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
9. 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
10. 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?
11. 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
12. Women and the Law
Suffrage and Other Basic Freedoms (cont.)
• other rights denied women during the 1920s,
1930s
– 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
13. 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
– property
– education
– employment
– male violence against women and children
• role of the USSC
14. 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
15. 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
16. 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
17. 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
18. 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
19. 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
20. 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
21. 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
22. 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
23. 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
24. 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
25. Women and the Law
Women’s Representation in the Legal System
• more women applying for law school now than
before
• gendered experiences:
– 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
26. 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
27. 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
28. 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
29. 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)