As we wind down Women’s History month, the role women played in Supreme Court cases is pivotal in understanding the huge impact of women on the laws of this country. For centuries, women advanced the law in cases involving civil rights, women’s right, marriage equality, health care and a myriad of other issues. For all that remains to be done in the area of women’s rights, we have largely come from the second class status barring women from practicing professions, attending schools and marrying the person of their choosing without infringement of the government.
Beginning in 1869, Myra Bradwell applied for admission to the Illinois bar in accordance with a state statute that permitted any adult of good character and with sufficient training to be admitted to the practice of law. Because she was a woman, however, the Illinois Supreme Court denied her admission, noting that the “strife” of the bar would surely destroy femininity. Chief Justice Charles B. Lawrence of the Illinois Supreme Court stated that “God designed the sexes to occupy different spheres of action.”
Bradwell appealed the decision to the United States Supreme Court, arguing that her right to practice law was protected by the Privileges or Immunities clause of the Fourteenth Amendment. In 1873, the U.S. Supreme Court held that states may statutorily deny women the right to practice law. Today women make up over 35% of all lawyers according to an American Bar Association report in 2016.
Following on the heels of Myra Bradwell, Virginia Minor of Missouri, a member of the suffrage movement, applied to the voter’s registrar to register to vote. She was not allowed to register. In 1875, her case advanced to the Supreme Court. The question presented was whether the adoption of the fourteenth amendment, permits a woman, who is a citizen of the United States and of the State of Missouri, to become a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone. In 1875, the U. S. Supreme Court in Minor v. Happersett decided that no new State admitted to the Union had ever conferred the right of suffrage upon women. It would take a constitutional amendment in 1920 to confer the right to vote for women. And it would take decades later for Black women to become franchised in Jim Crow states.
In 1951, third grader, Linda Brown, was denied entrance to Topeka’s all-white elementary schools. In the landmark case of Brown v. Board of Education, the Supreme Court ruled on May 17, 1954, through Chief Justice Earl Warren that “in the field of public education the doctrine of ‘separate but equal’ has no place,” as segregated schools are “inherently unequal.” Years later, Linda Brown would address the implications of Brown v. Board of Education:
In 1967, the case of Mildred Loving and Richard Loving would change the laws of interracial marriage. In 1664 – 300 years before the Loving decision, Maryland passed the first British colonial law banning marriage between whites and slaves — a law that, among other things, ordered the enslavement of white women who married black men. In 1667, the Commonwealth of Virginia banned all interracial marriages, threatening to exile whites who marry people of color. By 1883 in Pace v. Alabama, the U.S. Supreme Court unanimously ruled that state-level bans on interracial marriage do not violate the Fourteenth Amendment of the U.S. Constitution. The ruling will hold for more than 80 years until Loving v. Virginia.
Mildred Jeter, of African American and Native American descent married Richard Loving, a white man in 1958 in the District of Columbia and then came back to their home state of Virginia. They were arrested and later tried. They agreed to leave their Virginia home due to its miscegenation laws and move to Washington, D.C. Unable to return to visit Virginia, they sought legal help through Attorney General Robert Kennedy and then with the ACLU. In a unanimous decision, on June 12, 1967, the Supreme Court ruled that the laws forbidding inter-racial marriages were unconstitutional. Mildred Loving spoke to ABC News immediately following the decision on the effects of it:
Loving v. Virginia paved the way for Windsor v. U.S. and the government’s discrimination of federal benefits to legally married same sex couples. Edie Windsor sued the U. S. government which denied federal estate tax exemption benefits to legally married same sex couples. In a 5-4 decision in 2013, the Supreme Court declared that the Defense of Marriage act was unconstitutional. Edie’s case paved the way for marriage equality in 50 states with the case of Obergefell v. Hodge in 2015.
Unlike Mildred Loving, Edie Windsor and Linda Brown, Washington Post CEO Katharine Graham came from a family of privilege when she faced off with the Supreme Court and the Nixon administration over the Pentagon Papers. Nonetheless, Graham was still treated with the second class rights of a woman when her father, Eugene, upon his retirement, passed the helms of the Post over to Graham’s husband, instead of to his daughter Katharine. However, as Katharine’s husband would later take his life in 1963, she became the CEO of the Washington Post. Faced with the decision in 1971 on whether to publish the Pentagon Papers exposing the lies of the Vietnam war, in defiance of the Nixon Administration’s lawsuit against the New York Time, she decided to publish. The U. S. government filed suit for an injunction which led to the Supreme Court case holding that the paper’s first amendment right to make information public trumped the government’s right to keep secrets. “In revealing the workings of government that led to the Vietnam War, the newspapers nobly did that which the Founders hoped and trusted they would do,” wrote Justice Hugo L. Black. Graham’s valiant efforts changed the course of history, as did those of Edie Windsor, Mildred Loving, Linda Brown, Mildred Bradwell and countless others.
Women still await full rights with regard to pay equity, sexual harassment laws, discrimination in the workplace, among other areas. But time is almost up in these areas too.
Debbie Hines is an attorney and a member of the Supreme Court bar. She also is a contributor to the Women’s Media Center.