Family Law today and the evolution of Women’s Rights stem in great part from the Law of Coverture. Tracing back to the legal practices of the Middle Ages, the Law of Coverture developed over time through court decisions in England, adopted by the early colonies, and formalized by individual states of the United States in the 1800s.
Under the Law of Coverture, when married, a woman’s rights would be absorbed into the marriage to become one entity with her husband, and a woman’s identity would be “covered” by her husband’s. A married woman could not own any property, not even her own wages earned by her efforts outside of the home. She could not educate herself or make decisions regarding the children against her husband’s wishes. She could also not own or control her own body since such ‘property’ belonged to her husband.
Although there was no official end date to the Law of Coverture, many states enacted laws that gradually deteriorated its tenants by enabling women to own and control property, keep her wages, sign contracts, and inherit property separate from her husband in the late 1800s. Although many would like to believe these legal developments stem from empowering women, the true motivation was based on the economic benefit to husbands. Essentially, if a husband’s assets were threatened by debt collectors or bankruptcy, he could transfer the assets to his wife’s name. Since husbands still had final say over the wife’s financial decisions, the wife simply provided another financial planning tool.
Due to the underlying current and mindset embodied by the Law of Coverture, marital rape was not considered a crime by states and domestic violence was not a notable concern within romantic relationships until the 1970s. Up and until the 1970s, the law continued to recognize that a husband could not rape or abuse his property – his wife. As such, the laws empowering women and protecting their lives and bodies from spousal abuse or control are relatively new. Even today, you see remnants of the Law of Coverture with wives ‘taking the name’ of their husbands.
The transformation of family law and the journey of women’s rights has a number of notable women challenging the status quo.
In the mid-1800s, Myra Bradwell pursued a legal career; however, upon filing her application to the Illinois State Bar Association, she was promptly denied admittance on the basis of sex despite the support of her lawyer husband. In 1872, Ms. Bradwell argued that one of her protected “privileges and immunities” under the 14th Amendment of the United States Constitution was the right to practice law regardless of gender (Bradwell v. State of Illinois). Unfortunately, the U.S. Supreme Court held that the state of Illinois was permitted to discriminate against women. In a concurring opinion, three of the justices wrote that “[t]he paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” Ms. Bradwell’s attempts to claim equal constitutional rights were denied. Her response, “Women have the right to think and act as individuals; if the great father had intended it to be otherwise he would have placed Eve in a cage and handed Adam the key.” That same year, the Illinois legislature opened all professions to women, including the practice of law. Although Ms. Bradwell did not renew her bar application, she became an honorary member of the Illinois State Bar Association.
More than ever before, women are entering spheres historically reserved to men only. One of those women needing no introduction, and a figure in pop culture as the “Notorious RBG,” Ruth Bader Ginsburg was one of the few women in her class at Harvard Law School and graduated from Columbia Law School in 1959. As an advocate for gender equality and women’s rights, she won many arguments before the U.S. Supreme Court through the 1970s. In 1980, she was appointed to the U.S. Court of Appeals and then was appointed to the U.S. Supreme Court in 1993. Justice Ginsburg is known for her dissenting opinions, some of which were the basis for new laws proposed and passed by state legislatures and the United States Congress to further expand and strengthen women’s rights.
January 2021 marked a turning point when Kamala Harris was sworn in as the first female Vice President of the United States. After graduating from the Hastings College of the Law (University of California), Madam Harris began her legal career as a deputy district attorney. She was District Attorney of San Francisco from 2004 to 2011, Attorney General of California from 2011 to 2017, and then a U.S. Senator from 2017 to 2021.
A woman’s ability to pursue her desired education and career, to earn and own her own wages, and to act independently of her husband has transformed over the past 150 years. In honor of International Women’s Day on March 8th, we reflect on the building blocks of those who came before us and continue to carry the torch forward for future generations.
Written by: Theresa E. Viera
