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Myra Bradwell did not find justice

My colleague Lauren Kirkwood’s article about the Finding Justice book event Monday celebrating women attorneys in Maryland reminded me of my Constitutional Law class (c. 1989) and the Supreme Court’s 1873 decision in Myra Bradwell v. Illinois.

The cover of Finding Justice.

The cover of Finding Justice.

The state had denied Bradwell a license to practice law not because of a failed bar exam but because, well, her name wasn’t Myron.

So she did what any self-respecting, should-have-been-admitted lawyer would do: She took her case all the way to the Supreme Court.

Her attorney argued that Illinois had violated Bradwell’s constitutional rights under the Privileges and Immunities Clause by not giving her the license she had earned and deserved.

The high court, in Justice Samuel F. Miller‘s majority opinion, rejected that argument and said a law license is not among the privileges of citizenship.

But it was Justice Joseph P. Bradley who, in a concurring opinion, gave a spirited defense of good ol’ boy networks when he characterized Bradwell’s case as bigger than the Constitution:

“[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…. It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based on exceptional cases.”

It would be another 100 years before then civil-rights attorney Ruth Bader Ginsburg would successfully argue that gender discrimination by a governmental body violates the Equal Protection Clause.