by Martha Albertson Fineman
One hundred years ago, in 1908, two Boston women enlisted Arthur Winfield MacLean to tutor them so they could sit for the Massachusetts bar examination. From that humble but significant beginning grew Portia Law School, which blossomed into the New England School of Law. Portia was the first law school established exclusively for women, who at that time were denied entry into all but a few existing schools of law. This year New England Law celebrates its 100th anniversary and the integration of women into the legal profession, with women making up over half of the student body at some law schools and making progress in achieving partnerships and professorships.
In 1908, the legal profession was not alone in its exclusion of women.The early twentieth century was a time of entrenched—even celebrated—gender discrimination in American society. Treating women differently and cloistering them away from politics and the professions was justified by assumptions about their inherent distinctiveness as human beings. Certainly, women‘s unique role was valued, perhaps even more so than that of their male counterparts, at least rhetorically. However, the general perception of society was reflected in legal pronouncements that women‘s constitution and temperament meant they were ill-equipped to handle the demands of public and political life. Women‘s divine destiny was found in the nursery and kitchen.
That gender-differentiated perspective found its way into a variety of Supreme Court pronouncements. For example, Muller v. Oregon, a case decided by the Supreme Court the same year that Portia emerged, cast women as different from, and weaker than, men. Muller was a Progressive era case that upheld protective labor legislation monitoring the hours that women employed in factories and laundries could work. It was notable for many reasons; including the fact that it ushered in the innovative ―Brandeis Brief,‖ which presented sociological evidence in order to demonstrate there was a societal issue in need of legal remedy. Muller also is of interest in that it considered legislation that separated women workers from men and found them in need of special protection.
The gender-specific approach taken in Muller was shaped in large part by the dictates of an earlier case in which protective legislation was considered and rejected by the Court. In Lochner v. New York, the Court found that the police power was not sufficient to support state efforts to limit the hours employees could work in ordinary occupations. Justice Peckham wrote for the Lochner Court‘s majority, folding liberty of contract into the Due Process clause and finding that the statute interfered with “the right of contract between employer and employes [sic].” The opinion also noted that the law ―involve[d] neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.
For the advocates of progressive labor legislation, the path to securing protection must have seemed clear—make arguments that resonated with the public interest such that the Court would have to let regulation stand.
Lochner concerned an occupation limited overwhelmingly to male workers, although the language of the case does not specifically limit itself to them as a class. By contrast, the legislation at issue in Muller intentionally introduced gender as a focus and limitation, setting hours protection for women only. When this was challenged in court, the arguments for upholding the legislation focused on asserted gender differences, which were urged as necessitating a move beyond a mechanical application of the Lochner rationale. State interests and public purposes lay behind the move to protect women workers and it was therefore consistent with the exercise of police power.
The brief in Muller devoted hundreds of pages to the proposition that the state had an interest in protecting the health of women based on the importance of their roles as mothers.11 The brief built upon prevailing beliefs about women‘s differences in setting out an argument that the state could limit women‘s liberty to contract in regard to their labor, even if it could not do so in regard to men. Women were deemed to be physically and emotionally weaker than men and in need of special protection, particularly since they had a distinctive role to play in the home that required their energy not be exhausted by paid employment.
Regardless of the wording of the legislation, the proponents of Muller reforms were not only concerned with women workers. Organizations such as the National Consumers‘ League and the National Women‘s Trade Union League supported such regulation not only because it was thought that women workers were more easily exploited than their male counterparts, but also because they viewed such regulations as a wedge, a step toward gaining protections for all workers.13 Protections for male workers were not to become viable until the 1930s when the Court became more deferential to legislatures in the wake of the reformatory zeal of the New Deal.14 By that time, however, the notion of women needing physical and emotional sensitivities was ensconced in American jurisprudence, not to be uprooted until the 1960s and 1970s when the Equal Protection Clause and Title VII were used to impose gender neutrality as the preferred legal norm.15
- THE PARADOX OF GENDER EQUALITY
Muller is an interesting case from the perspective of contemporary feminist legal theory in that it presents a paradox of gender equality that continues to be replicated in debates today. On one hand, the regulations at issue addressed the real world circumstances of working class women, who needed protections from oppressive and exploitative workplaces. Muller was greeted by some as a welcome and necessary intervention for women overwhelmed by the dual demands of work and family. Existing law precluded across-the-board protective legislation, but gender-specific reforms could be successful because women‘s unique reproductive and domestic roles supplied the necessary interest of the public in the reforms. Even if imperfect and incomplete, such reforms helped the life circumstances of women who were among the most oppressed.
On the other hand, many strongly believed that it was essential to make a commitment to a more abstract and pure sense of sexual equality by requiring that women be treated the same as men, no matter how bad that treatment was. Helping some women workers by establishing “women” as a distinct and separate category of workers with different needs and circumstances that justified the application of different rules solidified the general sexist tendencies of the society, giving them legal force in regard to women in the workplace. Freedom from exploitation might have been the objective of such labor reform, but gaining protection in this piecemeal manner came at the sacrifice of women being treated as the formal equals of men in regard to the workplace and the liberty to contract. Gender differences so recognized could be used against women in the future and used as the basis for discrimination, reinforcing women‘s subordination and exclusion from public life. After all, in the Muller era, women were still denied the right to vote based on arguments about their differences.16
The New York Times on February 28, 1908 drew the connection between the two movements—protective labor legislation and suffrage in writing of the Muller decision—that ―”[w]e leave to the advocates of women suffrage to say whether this decision makes for, or against, the success of their cause.”
It is undeniable that after Muller, states ushered in reforms that not only brought needed protective relief to many women, but were also used to confine some women to low paying jobs. Protective legislation barred some women from working overtime and holding certain higher paid jobs, such as those found in bars, delivering mail, or working in foundries and mines. These results were viewed as vivid lessons on the fallacy of the Muller approach by liberal legal feminists challenging gender-specific laws in the mid-twentieth century. They urged courts to favor formal equality or equality as sameness of treatment and this view prevailed.
Even today, however, there are those who argue that there are significant limits to an equal rights strategy. They urge we must recognize differences between the social and cultural positions of women and men, as well as pluralism within the category of women.
They argue we need a notion of equality that is sensitive to gender differences, whether those differences arise due to biological distinctiveness or social circumstances. Perhaps this approach can be described as an attempt to “put women into the Constitution on female rather than male terms.“
I put this project of forging a new definition of equality at the top of my agenda also, but I would approach things a little differently at this point in my intellectual development. I think we have to leave the gender wars behind and address the issues we now confront not in terms of women versus men. Rather, the pressing task is how to make our sense of equality resonate with the human condition generally. In undertaking this task there are lessons women (and men when they are caretakers) have learned about the human condition while historically confined to the family—caring for others. There are profound insights that come from confronting dependency and vulnerability on a day-to-day basis. For one thing, it is clear that our aspiration for equality can not only take the public and political aspects of life into account; we must include the roles of parents and partners as well as those of workers and voters in forging a new understanding of equality. From this perspective, the failure of a Muller approach was not that it recognized the need for protection of women from the exploitive workplace, but that men were not seen in need of the same sort of protection from exploitation in the workplace and concessions to their family life as well.
Further, our legal theorists have failed in continuously overlooking what we know about humanity and the need for positive state protection, including the substantive provision of social goods. Ignoring dependency and vulnerability has meant that our legal sense of equality was comfortably developed as narrow and focused on prevention of some forms of discrimination, rather than on state responsibility to respond to basic human needs. In addition, inattention to the interdependencies inherent in the human condition has allowed us to idealize contract and individual autonomous choice in ways that mask society‘s role in perpetuating inequality.”