State materials are diverse. Each state has different laws, follows precedents set by different court cases, uses different terminology, and publishes legal materials according to its own dictates. The scope, complexity, and richness of the Law Library's holdings become apparent by examining six distinct areas of state law with important historical ramifications for women:
Generally, property is divided into two major areas: realty and personalty. Realty is land, whereas personalty is possessions—for instance, jewelry, money, furniture, or (formerly) slaves. State laws regulate who may purchase property, who may own it, and how it will be distributed upon the death of the owner or owners. This premise applies unless the land is federal property, in which case the federal government makes the determination.
Property laws have been important from the beginning of this nation, especially since many new citizens did not or could not own property in their countries of origin. Disagreement among the colonies about continuing British legal traditions resulted in differences in colonial laws—some colonies wanted to remain true to British legal tradition, whereas others chose to abandon some or all of the traditions. With its very structured property and inheritance common-law tradition, Great Britain allowed women to file suit in chancery courts, known as “equity courts.” The approach a colony took on such an issue determined to a large extent the rights and privileges that women living in that colony possessed.
Some colonies, such as Virginia, had liberal laws that gave widows the right to own or control the use of land as part of their dowry rights.13 Connecticut, on the other hand, gave women no rights to own their property or their husbands' real property. Other colonies gave wives the right of private examination.14 Their laws required husbands to get the signatures of their wives before title to joint property or property brought to the marital state by the wife could be conveyanced or transferred.15 Virginia adopted the British chancery court system, which gave women the ability to challenge male descendants' claims to land. In the western territories, because of the influence of Spanish civil law, women might enjoy community property rights.
The importance of courts is evinced by the relative abundance of published court opinions. Some cases even reached the U. S. Supreme Court. One of the earliest, Jones v. Porters, was decided in 1740 in a Virginia court.16 In it, the court nullified a conveyance made by a married couple because the wife's private examination had not been recorded. Without the private examination on record, purchases could be nullified, as illustrated by a 1691 law of New York: “An Act declaring what are the Rights & Privileges of Their Majesties Subjects inhabiting within Their Province of New-York: That no Estate of a Feme Covert shall be sold or conveyed, but by Deed acknowledged by her in some Court of Record, the Woman being secretly examined, if she doth it freely, without threats or compulsion of her Husband.”17
Between the late eighteenth and the end of the nineteenth century, the U.S. Supreme Court rendered more than one hundred decisions in which women and property rights or conveyancing of property were at issue. One of the first cases was Barnes' Lessee v. Irwin in 1793, which concerned a wife's inherited property and an antenuptial agreement.18 The high court ruled in favor of the defendant, upholding the validity of the antenuptial agreement and the wife's right to grant ownership through her will. The importance of property ownership and the right to devise were clearly evident in the pervasive laws and court decisions rendered in colonial America and the early United States of America.
While reading an article on community property in New Mexico, you see a commentary on a court decision that interests you. A footnote gives the legal citation as McDonald v. Senn et al., 53 N.M. 198, 204 P.2d 990 (1949).19 The Law Library of Congress has both reporters, New Mexico Reports (N.M.) and the Pacific Reporter, Second Series (P.2d), but you choose to use the Pacific Reporter, the regional reporter. As you begin reading the decision, you discover that the New Mexico community property law was adopted in common law in 1876; the statute was passed later. The statute was based on California law, which was modeled on the civil law of Spain and Mexico.
You are interested in looking at both the earliest statutes on community property in California and some judicial decisions interpreting those laws. You can either (1) find the case citations from California listed in the McDonald decision, or (2) find the statutory citations from California listed in the decision. The most expedient approach is to use the statutory citations.
The California statutory citation for community property, written in the dissent, is “Section 161a of the California Civil Code, . . . adopted in 1927.”20 Start your search for the earliest statutes with this citation to the law being interpreted here. In the Civil Code of the State of California . . . 1927, section 161a of the appendix is an amendment to an earlier law. Sections 159-181 in the main body of the Civil Code give the law antedating this amendment. Because this edition of the Civil Code is annotated, you find a short history of the legislation here. Following section 159, “Husband and wife. Property relations,” you read:
“Legislation §159. 1. Enacted March 21, 1872; based on Stats. 1850, p. 254, §§ 14, 15, 22, 23; Field's Draft, N. Y. Civ. Code, § 80. 2. Amended by Code Amdts. 1873-74, p. 193, inserting ‘in writing’ after ‘may agree.’”21
To follow the tracings, first consult the Civil Code of the State of California, 1872. Section 164 of the code states: “All other property acquired after marriage, by either husband or wife, or both, is community property.”22 The notes in the annotations indicate that the first mention of community property occurs in the California Constitution, 1849, Article XI. Sec. 14. The General Laws of the State of California, from 1850 to 1864, Inclusive quotes the section:
“Husband and Wife
An Act defining the rights of husband and wife.
Passed April 17, 1850, 254.
§3564. Sec. 2. All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.”23
The California Constitution of 1849, Article XI: Promiscuous Provisions. 215. section 14 states:
“All Property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property, as to that held in common with her husband.”24
Also interesting is a mention of a treatise entitled Civil Laws of Spain and Mexico, a translation of the civil law of Spain published in 1851, in the discussion of McDonald v. Senn. Chapter 4 of the treatise, Rights and duties of Husband and Wife in relation to the property acquired during marriage, Section 1, Community of Goods, states:
“Art. 43. The law recognizes a partnership between the husband and wife as to the property acquired during marriage, and which exists until expressly renounced, in the manner prescribed in Section 3.”25
Court decisions can be found in the notes provided in the annotated codes or by using the state digests. In this instance, the Civil Code of the State of California is annotated and provides a number of citations to secondary sources:
“1) California Jurisprudence: See articles Husband and Wife; Divorce and Separation, vol. 9, p. 821. 2) A.L.R. Notes: Liability of husband for services rendered by wife in carrying on his business, note 23 A.L.R. 18.”26
(A.L.R. is American Law Reports.) The General Laws of the State of California is annotated also and provides a number of judicial decisions in the marginal notes: “Separate property of husband. 13 Cal. 9. 18 Cal. 654. Common property.”27 The first, 13 Cal. 9, is a case named Barker v. Koneman (1859), an appeal from a district court concerning property left in trust for the widow. The case 18 Cal. 654, or Lewis v. Lewis, is an appeal from probate court in 1861 determining the value difference between the late husband's separate estate and the common property.28
Interpreting and tracing the citations to statutory law and court decisions may initially seem complex, but once you begin to find the relevant footnotes and recognize legal citations, the research process is the same as it is in other subject areas.
During the nineteenth century, states began enacting common law principles affecting the property rights of married women. Married women's property acts differ in language, and their dates of passage span many years. One of the first was enacted by Connecticut in 1809, allowing women to write wills. The majority of states passed similar statutes in the 1850s.29 Passed in 1848, New York's Married Women's Property Act was used by other states as a model:
AN ACT for the effectual protection of the property of married women.
Passed April 7, 1848.
The People of the State of New York, represented in Senate and Assembly do enact as follows:
Sec. 1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.
Sec. 2 The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of her husband; but shall be her sole and separate property as if she were a single female except so far as the same may be liable for the debts of her husband heretofore contracted.
Sec. 3. It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.
Sec. 4. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.30
Before the Civil War, married women's property laws were concerned with equity procedures, focusing on the appropriate pleadings a wife should use to file a suit but not altering a husband's privileges granted by prior common law principles. After the Civil War, laws were concerned with equalizing property relations between husband and wife. As Joan Hoff-Wilson concludes in Law, Gender, and Injustice (1991), these laws “ranged from the simple ability of wives to write wills with or without their husbands' consent, to granting feme sole status to abandoned women, to allowing women some control over their own wages, to establishing separate estates for women, to protecting land inherited by widows from their husbands' creditors, to allowing widows legal access to their husbands' personal estates.”31
The Homestead Act of 1862 demonstrates that the federal government did not make gender one of the criteria for homestead ownership, and this concept was adopted by several western states as well:
Sec. 1 . . . head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, . . . shall, from, and after the first January, eighteen hundred and sixty-three, be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which said person may have filed a preemption claim, or which may, at the time the application is made, be subject to preemption at one dollar and twenty-five cents, or less, per acre; . . . .
Sec. 2: And be it further enacted. . . . upon application to the register of the land office in which he or she is about to make such entry, make affidavit before the said register or receiver that he or she is the head of a family. . . .32
At the turn of the twentieth century, it was the effectiveness rather than the language of the law that diminished the rights of females. Some state legislatures began enacting laws that recognized women's separate and inherited estates as part of family income, granting creditors the right to claim women's property to pay family debts. As estates, trusts, and succession laws were passed, the rights of dower were abolished. Even after these laws had been repealed, many states kept portions of the older laws. For example, intestate succession (succession without a will) generally allowed a widow to take one-third of the husband's estate as earlier rights of dower had specified.
Spain and Mexico, civil law countries, influenced the way property laws developed in the western United States. Early community property legislation was enacted in this region. One of the earliest mentions of the distinction between the wife's separate property and common property is in the California Constitution of 1849: Section 14: “All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife in relation as well to her separate property, as to that held in common with her husband.”33
Although the states passed legislation naming marital property as community property, husbands were the ones who managed and disposed of the property. Only if the husband died was the wife allowed to manage the property, as this 1879 Texas law illustrates:
Art. 2181. The surviving wife may retain the exclusive management, control and disposition of the community property of herself and her deceased husband in the same manner, and subject to the same rights, rules and regulations as provided in the case of a surviving husband, until she may marry again. . . . .
Art. 2852. All property acquired by either husband or wife during the marriage except that which is acquired by gift, devise or descent shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only.34
Before the Civil War, slaves and indentured servants were considered personal property, and they or their descendants could be sold or inherited like any other personalty. Like other property, human chattel was governed largely by laws of individual states. Generally, these laws concerning indentured servants and slaves did not differentiate between the sexes. Some, however, addressed only women. Regardless of their country of origin, many early immigrants were indentured servants, people who sold their labor in exchange for passage to the New World and housing on their arrival. Initially, most laws passed concerned indentured servants, but around the middle of the seventeenth century, colonial laws began to reflect differences between indentured servants and slaves. More important, the laws began to differentiate between races: the association of “servitude for natural life” with people of African descent became common. Re Negro John Punch (1640) was one of the early cases that made a racial distinction among indentured servants.35
Virginia was one of the first states to acknowledge slavery in its laws, initially enacting such a law in 1661.36 The following year, Virginia passed two laws that pertained solely to women who were slaves or indentured servants and to their illegitimate children. Women servants who produced children by their masters could be punished by having to do two years of servitude with the churchwardens after the expiration of the term with their masters. The law reads, “that each woman servant gott with child by her master shall after her time by indenture or custome is expired be by the churchwardens of the parish where she lived when she was brought to bed of such bastard, sold for two years. . . .”37
The second law, which concerned the birthright of children born of “Negro” or mulatto women, would have a profound effect on the continuance of slavery, especially after the slave trade was abolished—and on the future descendants of these women. Great Britain had a very structured primogeniture system, under which children always claimed lineage through the father, even those born without the legitimacy of marriage. Virginia was one of the first colonies to legislate a change:
Negro womens children to serve according to the condition of the mother.
WHEREAS some doubts have arrisen whether children got by any Englishman upon a Negro woman should be slave or free, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shalbe held bond or free only according to the condition of the mother, And that if any christian shall committ ffornication with a Negro man or woman, hee or shee soe offending shall pay double the ffines imposed by the former act.38
Most slave colonies or states enacted similar laws. After the slave trade officially ended, many slave owners tried to ensure that sufficient numbers of slaves were available to work their plantations. Slave women of childbearing age became more valuable. There are a number of court cases concerning slave women who either killed their masters who forced them to have sexual relations or killed the children rather than have the children enslaved.39
Miscegenation laws, forbidding marriage between races, were prevalent in the South and the West. Because English masters had had little regard for indentured servants of non-Anglo ethnic groups, they allowed and sometimes encouraged commingling of their servants. Being seen in public or bringing legitimacy to these relations, however, was not lawful. This is evinced by a court decision from 1630, the first court decision in which a Negro woman and a white man figured prominently. Re Davis (1630) concerned sexual relations between them, the decision stating, “Hugh Davis to be soundly whipt . . . for abusing himself to the dishonor of God and shame of Christianity by defiling his body in lying with a Negro, which fault he is to actk. next sabbath day.”40
Virginia passed its first miscegenation law in 1691 as part of “An act for suppressing outlying Slaves.”
And for prevention of that abominable mixture and spurious issue which hereafter may encrease in this dominion, as well by negroes, mulattoes, and Indians intermarrying with English, or other white women, as by their unlawfull accompanying with one another, Be it enacted by the authoritie aforesaid, and it is hereby enacted, that for the time to come, whatsoever English or other white man or woman being free shall intermarry with a negroe, mulatto, or Indian man or woman bond or free shall within three months after such marriage be banished and removed from this dominion forever. . . .41
Another section of the law closed the loophole created by the 1662 birthright law, which mandated that children born of a free white mother and Negro father were technically free. This amendment stated that a free white woman who had a bastard child by a Negro or mulatto man had to pay fifteen pounds sterling within one month of the birth. If she could not pay, she would become an indentured servant for five years. Whether or not the fine was paid, however, the child would be bound in service for thirty years.
The laws that restricted slaves or indentured servants generally addressed the owners and penalized them for breaking the law. Laws governing slaves allowed masters to beat or kill them under certain circumstances. Nor could they go to court to seek redress. A person of color was not permitted to testify against a white Christian, as illustrated by the 1717 Maryland law:
II. Be it Therefore Enacted, by the right honourable the Lord Proprietary, by and with the advice and consent of his Lordship's Governor, and the Upper and Lower Houses of Assembly, and by the authority of the same, That from and after the end of this present session of assembly, no Negro or mulatto slave, free Negro, or mulatto born of a white woman, during his time of servitude by law, or any Indian slave, or free Indian natives, of this or the neighbouring provinces, be admitted and received as good and valid evidence in law, in any matter or thing whatsoever depending before any court of record, or before any magistrate within this province, wherein any christian white person is concerned.42
Against these overwhelming restrictions, there were a number of court cases in which slaves filed suit seeking their freedom or freed Negroes claimed property that had been inherited from their former owners. Elizabeth Freeman (1732/ 34-1829), a slave, presented her case for freedom in a Massachusetts court pro se in 1783 and won.43 In addition there were cases where the slave or freed person was the defendant; Celia, a Slave is a narrative account of such a trial in Missouri in 1855.44
White women were often involved in litigation concerning slaves through the workings of the dower laws. In some states women could inherit personalty but could only receive a life estate in real property.45 This situation created many problems, particularly if slaves were needed to make profits from the land. For example, if a woman chose to free her inherited personalty at death, her descendants would have no one to work the land unless they farmed it with paid workers or purchased new slaves. Frequently, wills or contracts that granted freedom or conveyed realty or personalty as dower were contested in court.
The laws and resulting court cases that involved slavery and indentured servants have had a major impact on America, its men and women alike, in both the past and the present. Through the years, the laws that the states passed became steadily more restrictive toward slaves, mulattoes, and freed Negroes. In 1850, the federal government's involvement deepened with the passage of the Fugitive Slave Act, responding to strong lobbying efforts by slaveholders wanting to counteract abolitionist forces.46 In the face of these all-encompassing laws, women with extraordinary courage fought for a better life. For example, Harriet Tubman (ca. 1821-1913) returned to the South nineteen times to bring more than three hundred fugitives to freedom, and Charlotte Forten (1837-1914), a free black woman from Philadelphia, went to South Carolina during the early Civil War to teach “the contrabands of war” (slaves who had escaped to Union lines).47
In 1865, the Thirteenth Amendment to the United States Constitution ended slavery and involuntary servitude. Nevertheless, many laws and judicial precedents that had been established before that date would not be changed until the mid- or late-twentieth century.
Women have been a part of the legal system since the early years of this nation, but for a long time, they were prohibited through various means from practicing law. There have been some exceptions. Margaret Brent (ca. 1601-1671), for example, arrived in the New World in 1638, received a land grant in St. Mary's City, and became executrix for Governor Leonard Calvert of Maryland. She appeared before the provincial court to file suits against her own debtors and to plead cases for others.48 Luce Terry (1730-1821) in 1796 was “the first voice of a black woman in the nation to influence law before a court on which a member of the U.S. Supreme Court sat when she gave an oral argument in a Vermont court before Justice Samuel Chase who was riding the circuit in New England.”49
Initially, women were denied admission to law schools, and later they were denied admission to state bar associations. State legislative bodies or the administrative offices of a state's supreme court determine the requirements for bar admission and the codes of professional ethics
Myra Bradwell (1831-1894), for example, filed a petition with the U. S. Supreme Court to appeal the decision of the Illinois Supreme Court that denied her admission to the state bar in 1872 after she had completed her legal studies and passed the bar examination.50 Her argument was based on the Immunities and Privileges Clause of the Fourteenth Amendment, which says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .”51 The U.S. Supreme Court ruled that the immunities and privileges clause did not apply to the “right to admission to practice in the courts of a State,” and thereby set a precedent of noninterference by the federal government in state employment affairs that would remain in place for decades. The justices conceded that Mrs. Bradwell was a “citizen” according to the Constitution, but the fact that she was married presented the Court with problems. Justice Bradley concurred in the Court's opinion, and his view of women would prevail in future judicial opinions:
It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. 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. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.52 [Bradwell v. State of Illinois, Oyez case page External].
In 1893 Belva A. Lockwood (1830-1917), a trained attorney who was the first woman admitted to practice before the U.S. Supreme Court, filed suit for mandamus in this same court to force the Commonwealth of Virginia to admit her to the state bar. Stating its precedent, the U.S. Supreme Court “denied leave” to bring her argument:
In Bradwell v. the State, 16 Wall. 130, it was held that the right to practise law in the state courts was privilege or immunity of a citizen of the United States; that the right to control and regulate the granting of license to practise law in the courts of a State is one of those powers that was not transferred for its protection to the Federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license.53
Belle Babb Mansfield (1846-1911), the first woman admitted to a state bar in the United States, was formally admitted to the Iowa State Bar in June 1869 after a ruling in the Iowa courts in her favor.54 Charlotte E. Ray (1850-1899 or 1900), a Howard University graduate, was the first African American woman lawyer; she was admitted to the District of Columbia Bar in 1872 without a fight because she applied for admission under the name C. E. Ray and the admissions committee thought she was male.55
Today women lawyers are enjoying opportunities that would surprise and delight women of the nineteenth and early twentieth centuries. An 1890 commentary by Lelia Robinson (1850-1891), the first woman admitted to the Massachusetts bar, traces the beginnings:
[B]ut it remained for the United States to inaugurate the era of the woman lawyer of today. And this was so short a time ago,—for the woman lawyer in the abstract has not yet attained her majority,—that the novelty of her very existence has scarcely begun to wear off, and the newspapers publish and republish little floating items about women lawyers along with those of the latest sea-serpent, the popular idea seeming to be that the one is about as real as the other.56
As the woman lawyer is increasingly taken more seriously, books for women attorneys address such issues as how to become partners in large law firms, “rain-making (or generating business for a law firm),” and marketing as a sole practitioner. More important, women attorneys are receiving favorable decisions in court concerning their rights as attorneys, not just their right to be members of a state bar.57
When it was ratified in 1920, the Nineteenth Amendment to the United States Constitution granted the right to vote to women. Before that time, some states had passed legislation allowing women to vote, beginning with Wyoming in 1869:
Be it enacted by the Council and House of Representatives of the Territory of Wyoming:
Sec. 1. That every woman of the age of twenty-one years, residing in this territory, may, at every election to be holden under the laws thereof, cast her vote. And her rights to the elective franchise and to hold office shall be the same under the election laws of the territory, as those of electors.
Sec. 2. This act shall take effect and be in force from and after its passage.
Approved, December 10th 1869.58
Western territories such as Colorado [Colorado session laws catalog record], Utah, and California followed Wyoming's example in the years from 1869 to 1911. Women gained limited suffrage rights from other states and municipalities, such as Kentucky, which gave widows with children the right to vote in school elections as early as 1838.59
During the women's suffrage movement, New Jersey became a rallying point for the early suffragists in their demonstrations and court cases. Interestingly, New Jersey had given women who met the enumerated requirements the right to vote in its 1776 constitution:
IV. That all inhabitants of this Colony, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote for Representatives in Council and Assembly; and also for all other public officers, that shall be elected by the people of the county at large60
Sixty-four years later, however, the state constitution of 1844 took away those suffrage rights, regardless of a woman's standing, stating that “One. Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of this State one year . . . .” would be entitled to vote.61
To force the issue of national suffrage, women filed court cases. The case of United States v. Susan B. Anthony was highly publicized.62 When Susan B. Anthony (1820-1906) tried to vote in New York for a member of Congress in 1872, the United States brought criminal charges against her. The court found Anthony guilty and fined her $100 plus court costs. That same year, Mrs. Virginia Minor (1824-1894), a Missourian, attempted to register to vote, despite a Missouri statute limiting voting rights to the “male citizen of the United States.” Eventually, the U.S. Supreme Court heard Minor's case and decided in favor of the state: “Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we Affirm the Judgment.”63 Because the various state laws on voting rights were arbitrary, it was necessary for the suffragists to mount a national effort for securing the franchise. The Nineteenth Amendment gave women some leverage in the electoral process.
Before the passage of the Civil Rights Act of 1964, a federal law, employment issues that affected women were governed solely by state law. After the Civil War, large numbers of women went to work outside their homes. In his speech before his colleagues in the U.S. House of Representatives to encourage the extension of equal suffrage in Alaska on Wednesday, April 24, 1912, Congressman Edward T. Taylor of Colorado stated:
But today one-fifth of all the women of this country are compelled to earn their own living by their daily labor. Nearly 7,000,000 women are wage earners today, and the number is constantly increasing. Woman suffrage is not responsible for bringing about that condition. It is the economic change that is going on in the life of this Republic. If the right to vote was taken away from the laboring men of this country tomorrow, they would within one year, and in many places within one week, be reduced to a condition of practical slavery; and it is little less than inhuman to compel the 7,000,000 women to work in this country under conditions that would be absolutely intolerable to men.64
Included in this workforce were married women, especially black and immigrant women, whose families required two incomes, as well as women who were single, widowed, or had been deserted. Some of them held jobs as school teachers or worked in other professions. Most jobs held by women were low-paying and involved substandard conditions. Some suffrage organizations advocated improvement of working conditions for women. These groups were largely responsible for the changes in labor laws that are referred to as “protective legislation.”
Protective legislation limited the number of hours that a woman or child could work in certain jobs and guaranteed them a minimum wage. The legal result, however, was that men and women were treated differently in the work place. The major justifications were that
Wisconsin, the first state to pass this legislation, enacted a protective law in 1867, but a law passed in Massachusetts in 1874, and amended in 1902, provided the most common model:
. . . no woman shall be employed in laboring in a manufacturing or mechanical establishment more than ten hours in any one day, except as hereinafter provided in this section, unless a different apportionment in hours of labor is made for the sole purpose of making a shorter day's work for one day of the week; and in no case shall the hours of labor exceed fifty-eight in a week. . . . 66
Although the laws were designed to protect the working woman's health, welfare, and morals until she married, not all employers and employees were satisfied with the legislation. Employers filed suit to have the statutes voided for being unconstitutional. Muller v. Oregon was one of the most famous of these cases.67 In it, the U.S. Supreme Court upheld the constitutionality of protective laws. Oregon's defense team was led by Louis D. Brandeis, a progressive attorney who became an associate justice of the Supreme Court before Muller was decided.68
Promulgation of minimum wage laws for women in the states followed their legislation of maximum hours. An example is the 1918 District of Columbia law that later became the subject of litigation:
Sec. 23. That this Act shall be known as the “District of Columbia minimum-wage law.” The purposes of the Act are to protect the women and minors of the District from conditions detrimental to their health and morals, resulting from wages which are inadequate to maintain decent standards of living; and the Act in each of its provisions and in its entirety shall be interpreted to effectuate these purposes.69
Employers contested these laws too; law suits were filed declaring them unconstitutional and in violation of the liberty-of-contract doctrine.70 In 1923, Adkins v. Children's Hospital was appealed to the U.S. Supreme Court, which ruled the law unconstitutional.71 Other state courts, following the precedent set by the Supreme Court, ruled that their state statutes were likewise unconstitutional. Fourteen years later, however, the U.S. Supreme Court reversed its decision and held that a law concerning the minimum wage for women in the State of Washington was constitutional.72
Although these laws guaranteed a minimum wage for women and children, they created unintentional inequities. Protective legislation gave courts the grounds for rendering inequitable decisions. It was not until the Civil Rights Act of 1964 that women enjoyed legislation granting equality in the workplace and the firm legal grounds to enforce such laws in court.
In employment, as in suffrage and possession of property, the legal history of women's struggle for equality mirrored what was happening in the society at large and amplifies our understanding of it.
The links below will connect to full bibliographic information for each title in the Library of Congress Online Catalog.
Links in the following notes will take researchers to the corresponding entries in the Library of Congress online catalog. Sources linked in previous note sections will not be re-linked.