JULY 25, 2013
THE BOOK JACKET may say it all. Three of the most prominent women scholars of our time, Stanford’s Deborah Rhode (Ernest W. McFarland Professor of Law) and Barbara Babcock (Judge John Crown Professor of Law), and Yale’s Linda Greenhouse (Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow at Yale Law School), describe Jill Norgren’s, Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers, as providing “detail and lively prose,” told “with awe and gratitude,” and a tribute to “bold, brave women.” Yet, that is not the real story. The real story is told by the titles of each of these modern women legal luminaries. Each holds a prestigious title at a prestigious law school in the name of — prestigious men.
Rebels at the Bar describes the struggles of a handful of women who sought to break the gender barrier for women becoming lawyers in the 19th century. Who were these women and what prompted them to fight the good fight? How did they manage to “lean in” when there were no harnesses to hold them? Norgren tells the story of how they clawed their way into the legal profession — they did not have it easy. While today’s women lawyers still struggle for equality, there is no doubt that our path was made possible by the sacrifices of these pioneers. They started the journey for us. The least we can do is pay attention to the lessons they learned.
Women wanted to become lawyers for many of the same reasons they wanted to vote. As activist Lucy Stone so aptly stated in her 1850 speech at the first women’s rights convention, “[My sisters and I] want to be something more than appendages of society.” In early America, this was an insane notion — literally. Elizabeth Packard, the mother of six children, was committed to an insane asylum for refusing to bend to her husband’s every command. The law controlled her life. Yet, as she and other women of her generation saw, men were the law. They wrote the laws, enforced the laws, sat as the jurors, and argued the cases. At some point, women got into their pretty little minds that life shouldn’t have to be that way. A few brave women took the bold step to change things.
The push for women lawyers began in the 1840s and 1850s when there was general interest in reform causes such as education, fair wages, and even the right to vote. Yet, the Civil War put these causes on hold as men once again decided the fate of the nation. Certainly, women played a role, but it was limited. In fact, the Civil War pushed women’s issues to the backburner as reformers focused on providing rights to blacks after the war.
Like many movements, sometimes it only takes one person to crack a door that thousands will later march through. That woman was Belva Bennett Lockwood. She had reached the professional heights of women of her time — she was a teacher. But she was a teacher who was fed up with the idea that women did all of the hard work in schools but were paid much less than their male counterparts. In a move that challenged the “boundaries of feminine modesty,” she applied to law school in 1870 for the simple reason that she believed that women should have more power. As post-Civil War America pushed toward a system of industrial capitalism, women pushed for rights in that capitalist world. Norgren writes:
Women sought to join the profession of law for many, but not all, of the reasons that men had come to the legal bar. Like men, most women needed a source of livelihood. Some applicants were teachers but saw legal work as more interesting, with greater promise of good money and advancement. Several of the earliest women lawyers were attracted by the intellectual challenge of reading law. Others saw the possibility of using law to further reform movement objectives. A small number of optimistic women hoped to establish themselves in elective politics, or as a member of the judiciary. Nearly all of the earliest women lawyers in the United States believed that the nation’s ideals of equality, liberty, and justice entitled them to the opportunity to prove that, like men, they could be good members of the legal profession.
But Rebels at the Bar is not just the story of a movement. It is the story of individuals and the individual sacrifices they made in order to become lawyers. Next time I have a student who complains about a B+, I plan to recite one of these stories. Success comes with nerve and sacrifice. These women had both.
Myra Bradwell knew something of the law. She was married to Judge James Bradwell. As he studied to become a lawyer, she read the law with him. But that would never be enough to make her a lawyer the way that it made her husband a lawyer. It took the Civil War to do that. When the war hit, she proved herself by fundraising for public causes. “Myra Bradwell was an entrepreneur,” Norgren writes, “not an innovator.” She used the power of her business — namely, a Chicago legal newspaper — to champion reforms in women’s property laws. She learned about the law by seeing how various laws affected her personally. The first act of her business was to successfully petition the Illinois legislature for a special charter permitting her to sign contracts in her own name, rather than turning them over to her husband as required by the prevailing married women’s property laws of the time.
Of course, she didn’t stop there. She became the indispensable outlet for circulating word of new laws enacted by the Illinois legislature. Myra Bradwell knew the law because she lived the law. She never attended law school — the schools never gave her the chance. She took and aced the Illinois bar exam, based just on her informal studies and her apprenticeship with her husband. But, being a member of a special club like the bar was not simply a question of merit. Bradwell’s application to become a member of the Illinois Bar was denied. She had no rights beyond those of her husband. Lest the Bar’s action be seen as anything other than what it was — a sheer power play to protect men’s positions — the Illinois judges upheld the denial, writing that to grant Bradwell a law license would mean that “every civil office in this State may be filled with women; [. . .] that women should be made governors, judges and sheriffs.” God forbid.
It was at that moment that Bradwell really did become a lawyer. For at that moment, she started analyzing the Constitution for arguments to support her application to become a member of the Bar. She argued that the Fourteenth Amendment protects the rights of “citizens” and women are citizens. She forced the hand of the male judges to state plainly why women were being denied entry into the profession. Justice Joseph P. Bradley unabashedly wrote in a concurrence rejecting her arguments that:
the idea of a woman adopting a distinct and independent career from that of her husband was repugnant to the idea of harmony of the institution of the family. Man is or should be the 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 lawyer.
Well, there you have it. Women couldn’t become lawyers because men got to define who women were. That was when the line was drawn. Women didn’t mind losing jobs that they couldn’t handle; they did mind “shiftless, incompetent boys” getting the jobs they couldn’t do, but women could. Lavinia Goodell was determined to do something about that. She read the law and became one of the first ten women in the United States admitted to a local or county Bar. But, the glass ceiling quickly closed in. Wisconsin Supreme Court Chief Justice Edward Ryan soon opposed Goodell’s application to rise any further.
Goodell took to the lecture circuit to recruit supporters for her cause. Justice Ryan replied in kind. In his infamous “Mrs. Jellyby” lecture, he argued that a woman could “accomplish her social destiny” only by marrying. To allow her out of the home to do something as unwholesome as practicing law, was a “prostitution of her sex and heresy to nature.” Goodell’s application to the high court was rejected, but her efforts helped to define the ludicrous nature of the arguments against women lawyers. And then she did what any good lawyer does. She rallied political support to change the law. In 1877, 23 years after Justice Ryan’s Jellyby lecture, Wisconsin enacted a law prohibiting denial of admission to the bar on account of sex.
If there was a secret to the success of these women pioneers it was their ability to act like lawyers long before they were recognized as such, to obtain the support of at least a few enlightened men, and to use popular support and legislatures to help them in their assault on the male bastions of the courts. In Los Angeles, the most famous of these women pioneers was Clara Shortridge Foltz. She was, as one might say, an uncommon woman of her time. She had the fortitude to divorce her two-timing husband, leaving her to forge an independent life for herself and her five children. She became a lawyer because “women’s work” (sewing or teaching) would not support her family. Her father, who had been a lawyer, supported her efforts. And, when told that California courts were only open to “white male citizens,” she drafted a “Women Lawyer’s Bill,” simply replacing the words “any white male citizen” with “any citizen or person.”
Despite never being admitted to law school, Foltz passed the bar exam on September 4, 1878, and became the first woman lawyer on the Pacific coast. There was nothing delicate about the legal work she chose to do. Just as Goodell’s practice began with saloon cases, Foltz focused on collecting outstanding debts. Remarkably, after she had already been in practice for a year, Foltz tried to attend law school. But Hastings College of the Law, the first law school established by California’s Legislature, blocked her way because her “rustling skirt” allegedly bothered the male students. Foltz had two choices: retreat or sue. She acted like a lawyer; she sued and prevailed. She won the right to attend law school, but her dream was never fulfilled because she went broke fighting.
It would be wrong, however, to think of these “rebels” as just advocating for their own interests. To a woman, they worked tirelessly to help others. Perhaps this was because they were not accepted in the male corporate world, but these first women focused on helping prisoners, indigents, and those with criminal and family law issues. Foltz became the first woman to be hired as special counsel to the San Francisco district attorney, she revised legislative proposals for a parole system in California, and she helped to create the first public defender’s office in Los Angeles.
And, like the other rebels, she kept reinventing herself. Lawyer one day; notary or commissioner another. She ran for Governor, just like Belva Lockwood became the first woman, in 1884, to run for the office of President of the United States. In this way, Justice Ryan might have been right. Once you open the door for woman, there is no telling what they might do next.
Not every woman legal pioneer was a public advocate; some hoped to be quietly accepted as they toiled in legal positions outside of the male-dominated courtroom arenas. But they were, in many ways, a sisterhood. They created their own informal bund, a support group tied together by letters and causes that provided at least some emotional support for confronting the challenges before them. And, they did this long before women had the right to vote.
Much time and ink has been devoted to the lives of our Founding Fathers. Norgren is right that it is time to heed the lessons of our amazing matriarchs. If rebel are defined as people who stands up for their own rights and opinions no matter the prevailing winds and no matter what anyone says, the first women lawyers of America were exactly that: rebels. They did not become lawyers so that they could be like men, nor to be “lady lawyers” who would use female wiles to win in court. They simply wanted to be lawyers who were recognized by their ability, not their gender. They wanted a fair shot. And they still do.