ABSTRACT
In 1908, two Boston women enlisted Arthur Winfield MacLean to tutor them so they could sit for the Massachusetts bar examination. That humble but significant beginning grew into Portia Law School, later the New England School of Law. Portia was the first law school established exclusively for women, who at that time were denied entry into nearly all other schools of law (Hamilton 2008). Today women are integrated into the legal profession, making up over half of the student body at some law schools and achieving partnerships and professorships. However, the early-twentieth century was a time of entrenched-even
celebrated-gender discrimination in American society. Cloistering women 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 than that of their male counterparts, at least rhetorically. Nevertheless, 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 in the nursery and kitchen. The most notorious expression of this sentiment appears in Justice Bradley’s concurring opinion in Bradwell v. Illinois in which he opined that:
[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, 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 life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent
career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state …
(Bradwell 1872: 141)
Bradley’s perspective found its way into a variety of Supreme Court pronouncements. For example, Muller v. Oregon (1908), a progressive-era case upholding labor legislation that monitored women’s hours in factories and laundries, cast women as different from, and weaker than, men. It is of interest because it considered legislation that separated women workers from men and found them as in need of special protection. The unanimous opinion stated:
That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.
