Us Legal Tradition Concerning Gender-Based Discrimination

The legal tradition of the United States is deeply rooted in English common law. Thus, the legal history of gender bias in United States law has its origins in the English tradition. One writer describes the attitudes of this tradition by describing the status of a woman in relation to her husband as "something better than his dog, a little dearer than his horse" (11). Under English common law, the woman was merely an extension of her husband. Once a woman married, her identity was subsumed into the identity of her husband. This practice was known as coverture; the identity of the woman was metaphorically and literally covered by her husband, who was responsible for making decisions for her. A prime example of coverture is the status of a married woman with regard to her property. Once a woman was married, her property became that of her husband. He was free to manage it, and even sell it, without her consultation or consent. Women in the common law tradition were also prevented from "[holding] office, [serving] on juries, or [bringing] suit in their own names" (33). Married women were denied the right to "hold or convey propety or to serve as legal guardians of their own children" (33). Until the adoption of the Nineteenth Amendment, all women in the United States were denied the right to vote.

In the common law heritage, women were completely prevented from participating in political and legal life. Alexis de Tocqueville noted this when he wrote, "American women never manage the outward concerns of the family, or conduct a business, or take a part in political life" (10). A number of justifications were used for this discrimination. Thomas Jefferson believed that allowing women to "mix promiscuously in gatherings of men" would lead to "deprivations of morals and ambiguity of issues" (10). Half a century later, in 1852, an editorial in the New York Herald claimed that the prevention of women from participating in legal life was caused by the "nature" of woman, which "[dooms her] to subjection" (10). The writer further claims that "women themselves would not have this [natural] law reversed" (10).

Expanding upon the idea of women's "natural" inferiority, Justice Brandley, in his concurring opinion for Bradwell v. Illinios, wrote, "Man is...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 paramount destiny and mission of women are to fulfil the noble and benign offices of wife and mother. This is the law of the creator" (33). A century later, Justice Brennan, in his decision for Frontiero v. Richardson, referred to this common law attitude, as expressed by Brandley, as "romantic paternalism." Women, as "delicate" creatures, were prevented from participating in political and legal life because such participation was deemed beneath them. Brennan states that this paternalistic attitude, "in practical effect, put women not on a pedestal, but in a cage" (33).

In the US legal tradition, the idea of natural law, or the "law of the Creator" (12), has been frequently cited as a basis for the denial of rights to women. Branley writes, "The constitution of the family organization, which is founded in the divine ordinance, as