Tuesday, September 22, 2009

Worst Supreme Court Case For Women #3: Ex parte Lockwood

Hello citizens and ladies. Today we're going to take a trip back to 1894 as part of my sporadically-running series on Worst Supreme Court Cases For Women. What's fun about these cases is that, even if you went to law school, you likely have never learned about these instances in which the fellows on the US Supreme Court denied women equal rights and generally just said pretty shitty stuff about we Vagina-Americans.

Today's case is Ex parte Lockwood (1894). Like Bradwell v. Illinois, this one involved lawyeress Belva Lockwood, who petitioned a Virginia court to receive a law license only to have that court reject her, not because she was incompetent, but because she had lady parts. Audaciously believing that the 14th Amendment's guarantees applied to her, a lady sort of citizen, she then requested an order from the US Supreme Court requiring the Virginia court to admit her to practice. To support her case, she cited Virginia law:

"Any person duly authorized and practicing as counsel or attorney at law in any state or territory of the United States, or in the District of Columbia, may practice as such in the courts of this state"

One, that "any person" bit up there should seal the deal in Lockwood's favor. Women are certainly persons, right? Two, as Lockwood was already a practicing attorney in several states, Lockwood met the statute's requirement for admission.

Yet, many states back then had an interesting way of defining "person." By "person," dudes back then usually only meant "men." Some still do. Generally, that is why I take issue with current statutes retaining the gender "neutral" pronoun. Back in the day, the generic "he" often really did only mean "he." Why "people" think women want to constantly be reminded of "man's" exclusion of women from equality and of men's status as default human being is beyond me. But I digress.

When legislators wrote "any person" they clearly didn't mean "any person." The Virginia statute continues:

"Every such person shall produce, before each court in which he intends to practice, satisfactory evidence of his being so licensed or authorized, and take an oath that he will honestly demean himself in the practice of the law, and to the best of his ability execute his office of attorney-at-law; and also, when he is licensed in this state, take the oath of fidelity to the commonwealth." [Emphasis added. Obviously.]

On its face, this appears to be a logically simple case and a clear violation of the 14th Amendment: Women are citizens. The US Constitution prohibits a state from denying citizens the privileges of citizenship. This particular state, Virginia, is denying female citizens the privileges of citizenship by denying them law licenses. Therefore, the state is acting in an unconstitutional manner.

Nonetheless, the Supreme Court dismisses Lockwood's claim without providing much analysis or any re-examination of discriminatory precedent.

First, citing Minor v. Happersett, the case that upheld Missouri's "right" to deny women the right to vote, the Court acknowledges that women are indeed US citizens, but then goes on to say that they are that special type of citizen whose rights can be denied. They aren't Real Citizens with equal rights like how men are.

Then, the Court cites Bradwell v. Illinois, which relied on the constitutional-protections-voiding Slaughterhouse Cases to declare that law licensing was a matter of state concern that could not be interfered with. For some background, the Slaughterhouse Cases notoriously stripped the 14th Amendment of its ability to afford US citizens protections against discrimination done to them by states. It held that the Privileges and Immunities Clause of the 14th Amendment only protected privileges and immunities conferred by the US government, not state governments. In other words, states could discriminate, but the federal government could not. Unfortunately for lady citizens, many states liked to discriminate against them. Not that such trivialities mattered to a certain majority of white dudes who the discrimination did no affect. In fact, some might say it was beneficial to the career opportunities of white dudes when women were not allowed into the profession.

By citing Bradwell, the Lockwood court held that, because law licenses were issued by states the 14th Amendment's protections did not apply. The state was free to prohibit women from being lawyers.

The American legal system is built on the concept of precedent. While it has its positives, in Lockwood we can see how precedent can lead to stagnation, the maintenance of an unfair status quo, and the reinforcement of male privilege.

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