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“Supreme Court in 1873: Women Unfit to Practice Law”

October 5, 2022

Not every landmark Supreme Court decision champions the rights of Americans or limits governmental power in a manner that preserves and protects our constitutional democracy. Some seminal rulings shock the conscience, rock the foundation of the nation and reflect crude and outdated prejudices which, when viewed from afar, are reminders that we have, indeed, made some progress.

      The U.S. Supreme Court’s ruling in Bradwell v. State of Illinois (1873) is such a case. Myra Bradwell held a law degree and had practiced law in Vermont before moving to Illinois with her husband, James, whom she helped to prepare for, and pass, the state bar examination. A few years later, in 1869, Myra decided that she wanted to practice law.  She also passed the bar exam and applied for admission. The Illinois Supreme Court unanimously denied her application “by reason of the disability imposed by your married condition.” Underlying the state court’s reasoning was the influence of the doctrine of “coverture,” an outdated legal principle that made a husband and wife one person during the marriage, rendering the wife’s acts null and void.

        Myra Bradwell petitioned the Illinois court for reconsideration, but to no avail. In this case, the court held that the obstacle to her admission to the bar was not that she was a “married woman,” but that she was a “woman.” Bradwell quickly appealed to the U.S. Supreme Court, arguing that the Privileges and Immunities Clause of section one of the 14th Amendment, opened all opportunities and professions to American citizens, asserting that “intelligence, integrity and honor are the only qualifications that be described as conditions.”

       In an 8-1 decision, Justice Samuel Miller for the Supreme Court, held: “There are Privileges and Immunities belonging to citizens of the United States, but right of admission to practice law is not one of them.” The Court’s crabbed interpretation of section one virtually eviscerated a provision that its drafters intended to dramatically broaden the rights and opportunities of Americans.  Section one defined United States citizenship to include the newly freed Black Americans, and it prohibited states from making laws abridging the “privileges or immunities” of that citizenship. The congressional debates in the 39th Congress that drafted the 14th Amendment stressed the denial to states of authority to interfere with the exercise of the “privileges and immunities” of American citizens. They reveal the aims of the framers to include all the rights covered in the first eight amendments, with the Privileges and Immunities Clause intended to make the Bill of Rights binding upon the states. Integral to the Privileges and Immunities Clause was the right to earn a living.

        The Court, however, said that protection of the right to earn a living applied to a select group of citizens, in some sectors, industries and professions. It did not protect a woman’s right to earn a living. Justice Joseph Bradley, in a historic concurring opinion, explained why women were unfit to practice law and why women did not enjoy the same privileges and opportunities afforded men.

        Justice Bradley wrote: “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 “domestic sphere” is that “which properly belongs to the domain and functions of womanhood. 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.”

     Myra Bradwell lost her case, but the Court’s ruling, obviously, did not constitute the last word on the issue. Women won the right to practice law across the country after congressional action. In 1878, Congress, taking the Bradwell decision as an invitation to act, began consideration of a bill “to relieve certain legal disabilities of women.”        

The measure provided that any woman who had practiced law in any state or territory, or in the District of Columbia for three years, and who qualified on moral character, may be admitted to the Supreme Court of the United States. The House of Representatives quickly passed the bill.

        The Senate passed the measure, and it became law in 1979. Senator Aaron Sargent of California, who later would introduce in Congress the first bill to grant women the right to vote, spoke on behalf of women’s rights, including the right to earn a living, in words that resonate in our time. “No man has a right to put a limit to the exertions or the sphere of a woman. That is a right which only can be possessed by that sex itself. The enjoyment of liberty, the pursuit of happiness in her own way, is as much the birthright of a woman as of a man. In this land man has ceased to dominate over his fellow—let him cease to dominate over his sister; for he has no higher right to do the latter than the former.”

       In the end, an all-male legislature, rather than an all-male judiciary, demonstrated significant support and understanding for women’s rights. Of course, some states, including Wyoming, had already granted women the right to practice law. This early legislative victory for women’s rights lit the way for the continuing effort to achieve gender equality in the United States.

-David Adler