Bradwell v Illinois

[WHEELER]

BRADWELL v. ILLINOIS

83 U.S. 130 (1873)

Justice Joseph D. Bradley, Concurring Opinion

 

Myra Brandwells application for a license to practice law was denied by the Illinois Supreme Court simply on the basis of sex. Her appeal to the Supreme Court of the United States was made and denied on constitutional grounds.

 

I concur in the judgement of the court in this case, by which the judgment of the Supreme Court of Illinois is affirmed, but not for the reasons specified in the opinion just read. ...

 

The claim that, under the fourteenth amendment of the Constitution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life.

 

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, womans 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 interests 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. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state and, notwithstanding some recent modifications of this civil status, 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 husbands consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.

 

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the nobel and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

 

The humane movements of modern society, which have for their object the multiplication of avenues for womans advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by man, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.

 

[WHEELER]

It is not permitted to a woman to speak in the church, not to teach, baptize, offer, or to claim to herself a lot in any manly function, not to mention the priestly office. Tertullian (c. 207, W), 4.33

 

Leadership is Male. The Bible teaches this. St. Paul teaches this. The Criterion of Truth is Consistency. This is the Truth. Palios Xristos, said Jesus.

 

St. Paul says "What does Nature teach..." That is what this Jurist did was use nature to say that women and men are not equal. Nature, Bible, Philosophy, the Constant teaching of the Church Fathers, all proclaim these self-evident truths!

(This message has been edited by WHEELER)

[Twocubdad]

Of course you understand that as a concurring opinion, this carries no weight of law.

[evmori]

Bet there are female lawyers in Illinois now! What is the point of posting a ruling from 1873?

 

I must, however, agree about men bing the leaders of the church. That is biblical.

 

Brrr. It's getting cold again!

 

Ed Mori

1 Peter 4:10

[firstpusk]

I am sure a thread supporting PLESSY V. FERGUSON will be WHEELER's next post.

 

He is a Neaderthal.

[OldGreyEagle]

"...Besides, all girls have cooties..."

 

Misogyny

[firstpusk]

"I must, however, agree about men bing the leaders of the church. That is biblical."

 

No doubt that Bing was a man and great as Father O'Malley, but I thought that Barry Fitzgerald was actually the leader of the church and I am pretty sure none of this is in the Bible.

[evmori]

firstpusk,

Actually male leadership in the church is biblical. I don't have the time right now to quote verses, but it is biblical. Rooster7, if you are lurking, do you agree? If so, would you be able to list some scripture references?

 

Ed Mori

1 Peter 4:10

[WHEELER]

A Christian did write a book, it is out there, called "Leadership is Male". It has all the Biblical references there.

 

St. Paul said that the HEAD OF EVERY WOMAN IS A MALE and that ALL women shall be quiet in Church for her husband is to teach her.

 

The term "misogyny" is a new term created by feminists in order to undermine and attack patriarchy. For OGE to use the term is to agree with their ideology.

 

It is natural for young boys to withdraw from women. In the book, Sex Differences, Modern Biology and the Unisex Fallacy", proves that this is a natural reaction of all boys. Leon Podles, an assistant Scoutmanster, in his book, "The Church Impotent", corroborates this phenomenom. In all churches lead by females, men do not attend. As churches become more effeminate, men are turned off. They do not participate any more. This is seen in Episcopal Churches and other liberal denominations of Christianity.

 

The original post is a consistent teaching of Christianity. It's opposite is Socialism. Define and Divide.

[packsaddle]

Vive le 'cooties'! I had a game called Cootie a long time ago. I think they are still made by Milton Bradley, at least that's what our female minister says.

[firstpusk]

Ed, that tug you feel is your leg being pulled. Your post said "bing" instead of "being". The reference are to the film "Going My Way".

[firstpusk]

Misanthropy and misogyny, when applied in conjunction pretty much define WHEELER.

[evmori]

Wheeler was right! The words do have meaning!

 

I missed that firstpusk! Good catch!

 

Wheeler,

Just kidding!

 

Ed Mori

1 Peter 4:10

[WHEELER]

As Igor Shafarevich wrote in his excellent essay  Socialism In Our Past And Future and Alexander Solzhenitsyn wrote in From Under the Rubble, the destruction of religion and the family are central to socialist ideology.

 

This is from the Thread:  "Socrates:  Culture defines Politics".

[NJCubScouter]

Ed, you are correct that Illinois has female lawyers now, as does every other state. I did a little looking around to see whether the Bradwell case has ever been directly overruled by the Supreme Court, or whether the states themselves decided over a period of time to allow women to be admitted to the practice of law. It appears to be the latter, though I strongly suspect that if such a limitation had existed into the 1970's, it would have been declared unconstitutional based on the developing understanding of the 14th Amendment and its restrictions on discrimination, which are of varying degrees depending on the type of discrimination.

 

Here is an interesting article about this.

 

http://www.law-lib.utoronto.ca/Diana/fulltext/corb.htm

 

(The article is somewhat in "legalese," I guess, but it has a good brief explanation both of the Supreme Court's current constitutional approach to gender discrimination, and the place of Bradwell in the development of that approach.)

 

It is my suspicion that between the time of the Bradwell case (1873) and, say, 1930 or so, all states probably dropped their prohibitions on women practicing law -- voluntarily, not because a court told them to. This would be consistent with legislative developments concerning women over that period of time and thereafter. I don't remember all the details I once knew about this, but it was in the period from around 1880 to around 1920 that all states adopted laws permitting married women to enter into contracts and own property in their own name, because believe it or not, "at common law" they were not. (This rule, before it was changed, is referred to in the above-linked article, because the Illinois authorities based their prohibition on women lawyers in part on the fact that at that time, women (at least married ones) still could not enter into contracts without their husband's consent.) During the same period, an increasing number of states were giving women the right to vote, and of course by 1920(+-) this was extended to all states by constitutional amendment. I think it's a safe bet that with the extinction of many of the legal restrictions on women participating in business transactions, and with women given full powers of participation in the political process, it must have seemed increasingly foolish to prohibit women from practicing law.