Law, Justice, and Society: A Sociolegal Introduction

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)