Appellant
Myra Bradwell
Appellee
State of Illinois
Appellant's Claim
That Illinois' refusal to admit women to the bar was a violation of Bradwell's constitutional rights.
Chief Lawyer for Appellant
Matthew H. Carpenter
Chief Lawyer for Appellee
None
Justices for the Court
Joseph P. Bradley, Salmon Portland Chase, Nathan Clifford, David Davis, Stephen Johnson Field, Samuel Freeman Miller (writing for the Court), William Strong, Noah Haynes Swayne
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
15 April 1873
Decision
That Bradwell's constitutional rights had not been violated.
Significance
This case was the first argued before the Supreme Court regarding the Fourteenth Amendment's protection to women's citizenship rights. Still, Bradwell wasunsuccessful in gaining the right to become an attorney.
Myra Bradwell, editor of the Chicago Legal News, passed the Illinois law exam in August of 1869. When she applied for admission to the Illinois barin September of 1869, she submitted the required certificate of qualification and also a separate written application addressing the fact that she was awoman. She conceded that the Illinois Revised Statutes described attorneys asmales, "authoriz[ing] him," for example, "to appear in all the courts [emphasis added]."
She then cited one section of the statutes: "When any party or person is described or referred to by words importing the masculine gender, females as wellas males shall be deemed to be included." She pointed out that "Section 3 ofour Declaration of Rights says `that all men have a natural and indefeasibleright to worship Almighty God,' etc. It will not be contended, that women are not included within this provision."
The Marriage Disability
The court refused to admit her. The refusal was based " . . . upon the groundthat you would not be bound by the obligations necessary to be assumed wherethe relation of attorney and client shall exist, by reason of the disabilityimposed by your married condition--it being assumed that you are a married woman . . . "
The disability referred to was a married woman's feme covert status, which was nothing less than her civil and legal death upon marriage. For example, married women--in Illinois up until the year of Bradwell's application--could neither make contracts nor own property. Bradwell took no comfort from the fact that "persons under twenty-one" had also been denied admission "uponthe same ground . . . "
Bradwell took another view of her married status. She filed an energeticallyworded brief with the Illinois Supreme Court the next month. She explained, "Your petitioner admits to your honors that she is a married woman (although she believes the fact does not appear in the record), but insists most firmlythat under the laws of Illinois it is neither a crime nor a disqualification." She discussed cases in which married female business owners had operated asfeme sole traders (women entitled to conduct business as if single),her own history as the successful editor and an undisputed stockholder of theChicago Legal News, and the Iowa bar's recent decision to admit Arabella Mansfield. She also discussed the state's Act of 1869, which had removedsome of the feme covert "disabilit[ies]" referred to by the Court.
Under that act, married women were no longer to be classed with infants since"a married woman may sue in her own name for her earnings, an infant may not." Bradwell claimed that a woman could now be held "liable as an attorney upon any contract made by her in that capacity." The act also protected a married woman's right to any money she earned whether as an attorney or a sewing-women. "Is it for the court to say, in advance, that it will not admit a married woman?" she asked.
Bradwell amended her brief a few weeks later to include the claim that her constitutional rights, especially as protected by the Fourteenth Amendment's guarantee that "no State shall make or enforce any law which shall abridge theprivileges and immunities of citizenship," were being abridged by the State of Illinois.
The Female Disability
The court was not persuaded. It ignored her Fourteenth Amendment argument andclaimed only that she had too broadly interpreted the impact of the Act of 1869. Those recent changes in Illinois property law, the Chief Justice wrote,affected only a woman's individual and separate holdings. Their "common law .. . disabilities in regard to making contracts" had not been ameliorated toan extent that would have "invited them to enter, equally with men, upon those fields of trade and speculation by which property is acquired though the agency of contracts."
The court also found that a woman, solely on the grounds of gender and even without her common law legal disabilities, was unfit to practice: "[A]fter further consultation . . . we find ourselves constrained to hold that the sex ofthe applicant independent of coverture, is, as our law stands, a sufficient reason for not granting this license [emphasis added]." Finally, the court disagreed with Bradwell's interpretation of the revised statutes, declaring that females may be included in masculine gender words but not "where there is anything in the subject or context repugnant to such construction. This is the case in the present instance."
All or Nothing
Bradwell appealed to the U.S. Supreme Court. Matthew H. Carpenter, a U.S. senator from Wisconsin, acted as her attorney. (Illinois did not send an attorney to defend its position.) He argued that Bradwell's Fourteenth Amendment rights had indeed been violated. He asked, "Can this Court say that when the Fourteenth Amendment declared `the privileges of no citizen shall be abridged,'it meant that the privileges of no male citizen or unmarried female citizen shall be abridged?"
If Bradwell's choice of profession or employment was not protected by this clause, Carpenter said, then neither was anyone else's. If no female could practice law, then neither could a "colored citizen." "If this provision does notopen all the professions, all the avocations, all the methods . . . to the colored as well as the white man, then the Legislatures of the State may exclude colored men from all the honorable pursuits of life, and compel them to support their existence in a condition of servitude." Conversely, if the amendment does protect colored people, then "it protects every citizen, black or white, male or female." On the very same basis, Carpenter declared, the State of Illinois had no right to bar Myra Bradwell from the practice of law.
God's Say So
The Supreme Court ruled that Illinois was entitled to restrict the practice of law--and indeed any other profession--to men. Justice Miller, delivering the Court's opinion, said that citizenship was irrelevant to one's admission tothe bar and therefore not within the province of Fourteenth Amendment protection.
Justice Bradley, in his concurring opinion, offered particularly biting observations on a woman's place in American society. To agree with Bradwell's claim of Fourteenth Amendment protection, Bradley wrote, would mean " . . . thatit is one of the privileges and immunities of women as citizens to engage inany and every profession, occupation or employment in civil life." Explaininghis opinion of the impropriety of such a notion, he insisted that the very idea of women having a distinct career from her husband would interfere with "family harmony" not to mention that "the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator."
He added that "many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most states. One of these is that a married woman is incapable, without her husband's consent, ofmaking contracts which shall be binding on her or him." Therefore, no woman could be an attorney--married or not--because even if there were exceptions tothe general rule, society must adapt "to the general constitution of things."
Bradwell was significant in its treatment of women's feme covert status, highlighting the fact that unmarried women felt the legal impact oftheir wedded sisters' feme covert status. This High Court's opinion would be maintained until its 1971 decision in Reed v. Reed.
Related Cases
Myra Bradwell
Appellee
State of Illinois
Appellant's Claim
That Illinois' refusal to admit women to the bar was a violation of Bradwell's constitutional rights.
Chief Lawyer for Appellant
Matthew H. Carpenter
Chief Lawyer for Appellee
None
Justices for the Court
Joseph P. Bradley, Salmon Portland Chase, Nathan Clifford, David Davis, Stephen Johnson Field, Samuel Freeman Miller (writing for the Court), William Strong, Noah Haynes Swayne
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
15 April 1873
Decision
That Bradwell's constitutional rights had not been violated.
Significance
This case was the first argued before the Supreme Court regarding the Fourteenth Amendment's protection to women's citizenship rights. Still, Bradwell wasunsuccessful in gaining the right to become an attorney.
Myra Bradwell, editor of the Chicago Legal News, passed the Illinois law exam in August of 1869. When she applied for admission to the Illinois barin September of 1869, she submitted the required certificate of qualification and also a separate written application addressing the fact that she was awoman. She conceded that the Illinois Revised Statutes described attorneys asmales, "authoriz[ing] him," for example, "to appear in all the courts [emphasis added]."
She then cited one section of the statutes: "When any party or person is described or referred to by words importing the masculine gender, females as wellas males shall be deemed to be included." She pointed out that "Section 3 ofour Declaration of Rights says `that all men have a natural and indefeasibleright to worship Almighty God,' etc. It will not be contended, that women are not included within this provision."
The Marriage Disability
The court refused to admit her. The refusal was based " . . . upon the groundthat you would not be bound by the obligations necessary to be assumed wherethe relation of attorney and client shall exist, by reason of the disabilityimposed by your married condition--it being assumed that you are a married woman . . . "
The disability referred to was a married woman's feme covert status, which was nothing less than her civil and legal death upon marriage. For example, married women--in Illinois up until the year of Bradwell's application--could neither make contracts nor own property. Bradwell took no comfort from the fact that "persons under twenty-one" had also been denied admission "uponthe same ground . . . "
Bradwell took another view of her married status. She filed an energeticallyworded brief with the Illinois Supreme Court the next month. She explained, "Your petitioner admits to your honors that she is a married woman (although she believes the fact does not appear in the record), but insists most firmlythat under the laws of Illinois it is neither a crime nor a disqualification." She discussed cases in which married female business owners had operated asfeme sole traders (women entitled to conduct business as if single),her own history as the successful editor and an undisputed stockholder of theChicago Legal News, and the Iowa bar's recent decision to admit Arabella Mansfield. She also discussed the state's Act of 1869, which had removedsome of the feme covert "disabilit[ies]" referred to by the Court.
Under that act, married women were no longer to be classed with infants since"a married woman may sue in her own name for her earnings, an infant may not." Bradwell claimed that a woman could now be held "liable as an attorney upon any contract made by her in that capacity." The act also protected a married woman's right to any money she earned whether as an attorney or a sewing-women. "Is it for the court to say, in advance, that it will not admit a married woman?" she asked.
Bradwell amended her brief a few weeks later to include the claim that her constitutional rights, especially as protected by the Fourteenth Amendment's guarantee that "no State shall make or enforce any law which shall abridge theprivileges and immunities of citizenship," were being abridged by the State of Illinois.
The Female Disability
The court was not persuaded. It ignored her Fourteenth Amendment argument andclaimed only that she had too broadly interpreted the impact of the Act of 1869. Those recent changes in Illinois property law, the Chief Justice wrote,affected only a woman's individual and separate holdings. Their "common law .. . disabilities in regard to making contracts" had not been ameliorated toan extent that would have "invited them to enter, equally with men, upon those fields of trade and speculation by which property is acquired though the agency of contracts."
The court also found that a woman, solely on the grounds of gender and even without her common law legal disabilities, was unfit to practice: "[A]fter further consultation . . . we find ourselves constrained to hold that the sex ofthe applicant independent of coverture, is, as our law stands, a sufficient reason for not granting this license [emphasis added]." Finally, the court disagreed with Bradwell's interpretation of the revised statutes, declaring that females may be included in masculine gender words but not "where there is anything in the subject or context repugnant to such construction. This is the case in the present instance."
All or Nothing
Bradwell appealed to the U.S. Supreme Court. Matthew H. Carpenter, a U.S. senator from Wisconsin, acted as her attorney. (Illinois did not send an attorney to defend its position.) He argued that Bradwell's Fourteenth Amendment rights had indeed been violated. He asked, "Can this Court say that when the Fourteenth Amendment declared `the privileges of no citizen shall be abridged,'it meant that the privileges of no male citizen or unmarried female citizen shall be abridged?"
If Bradwell's choice of profession or employment was not protected by this clause, Carpenter said, then neither was anyone else's. If no female could practice law, then neither could a "colored citizen." "If this provision does notopen all the professions, all the avocations, all the methods . . . to the colored as well as the white man, then the Legislatures of the State may exclude colored men from all the honorable pursuits of life, and compel them to support their existence in a condition of servitude." Conversely, if the amendment does protect colored people, then "it protects every citizen, black or white, male or female." On the very same basis, Carpenter declared, the State of Illinois had no right to bar Myra Bradwell from the practice of law.
God's Say So
The Supreme Court ruled that Illinois was entitled to restrict the practice of law--and indeed any other profession--to men. Justice Miller, delivering the Court's opinion, said that citizenship was irrelevant to one's admission tothe bar and therefore not within the province of Fourteenth Amendment protection.
Justice Bradley, in his concurring opinion, offered particularly biting observations on a woman's place in American society. To agree with Bradwell's claim of Fourteenth Amendment protection, Bradley wrote, would mean " . . . thatit is one of the privileges and immunities of women as citizens to engage inany and every profession, occupation or employment in civil life." Explaininghis opinion of the impropriety of such a notion, he insisted that the very idea of women having a distinct career from her husband would interfere with "family harmony" not to mention that "the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator."
He added that "many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most states. One of these is that a married woman is incapable, without her husband's consent, ofmaking contracts which shall be binding on her or him." Therefore, no woman could be an attorney--married or not--because even if there were exceptions tothe general rule, society must adapt "to the general constitution of things."
Bradwell was significant in its treatment of women's feme covert status, highlighting the fact that unmarried women felt the legal impact oftheir wedded sisters' feme covert status. This High Court's opinion would be maintained until its 1971 decision in Reed v. Reed.
Related Cases
- Colgate v. Harvey, 296 U.S. 404 (1935).
- Reed v. Reed, 404 U.S. 71 (1971).
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