Feminist Legal History

Essays on Women and Law

Tracy A. Thomas, Tracey Jean Boisseau

• Publisher: NYU Press
• Year: 2011
• ISBN:
  9780814787212
• Topic: Law
• Subtopic: Legal History
• Index: Law

Attuned to the social contexts within which laws are created, feminist lawyers, historians, and activists have long recognized the discontinuities and contradictions that lie at the heart of efforts to transform the law in ways that fully serve women's interests. At its core, the nascent field of feminist legal history is driven by a commitment to uncover women's legal agency and how women, both historically and currently, use law to obtain individual and societal empowerment.

Feminist Legal History represents feminist legal historians' efforts to define their field, by showcasing historical research and analysis that demonstrates how women were denied legal rights, how women used the law proactively to gain rights, and how, empowered by law, women worked to alter the law to try to change gendered realities. Encompassing two centuries of American history, thirteen original essays expose the many ways in which legal decisions have hinged upon ideas about women or gender as well as the ways women themselves have intervened in the law, from Elizabeth Cady Stanton's notion of a legal class of gender to the deeply embedded inequities involved in Ledbetter v. Goodyear, a 2007 Supreme Court pay discrimination case.

Contributors: Carrie N. Baker, Felice Batlan, Tracey Jean Boisseau, Eileen Boris, Richard H. Chused, Lynda Dodd, Jill Hasday, Gwen Hoerr Jordan, Maya Manian, Melissa Murray, Mae C. Quinn, Margo Schlanger, Reva Siegel, Tracy A. Thomas, and Leti Volpp

Part I
Contradictions in Legalizing Gender

1
Courts and Temperance “Ladies”

RICHARD H. CHUSED

In 1873 and 1874 parts of southern Ohio were gripped by a remarkable string of marches, religious gatherings, and sit-ins by conservative, Christian, white women intent on shutting down the distribution of alcohol in their communities. The immediate catalyst for the movement was a speech given by Dr. Diocletian Lewis, a believer in God, gymnastics, and temperance. He frequently gave orations urging women to pray at bars for the deliverance of intemperate souls, but he usually was politely received and ignored. On a few occasions his plan to use prayer to obstruct liquor traffic led to small and short-lived demonstrations. But his speech on “The Duty of Christian Women in the Cause of Temperance,” delivered on December 23, 1873, before a group of women in Hillsboro, Ohio, led to an outpouring of temperance fervor. The resulting “Crusade” spread like wildfire across the country’s midsection, choking off the flow of alcohol in more than 250 communities.¹ After the demonstrations ebbed and a sense of normalcy returned to the liquor trade, women active in the movement established the Woman’s Christian Temperance Union—a group that became the largest suffrage organization in the country by the 1890s.²

Though these events have been well described by historians,³ a fascinating series of issues relating to the use of legal institutions to control the demonstrative women arose during the Temperance Crusade in Ohio. Many women in Hillsboro opposed using available legal avenues to suppress the liquor trade, preferring strategies based on moral suasion. But, as with other major controversies in our history, aspects of the Temperance Crusade ended up in court despite the desires of many to avoid such forums. When liquor trade supporters sought injunctions against the sit-ins and marches, murmurs of discontent could be heard on the town’s streets. But once the court hearings began, Crusaders worked together to protect their interests. They regularly occupied large segments of courtroom public-seating areas and participated in some aspects of the legal proceedings. Their entrance into the traditionally male judicial domain had a profound influence on the progress of the movement and the camaraderie of the women. Historians have noted that the Crusade had a transformative impact on some of the women participants.⁴ It convinced them that public actions could alter social patterns and reconstruct cultural norms. A major part of that influence was first felt in the small town courts of Southern Ohio.⁵

Setting the Stage

The Temperance Crusade explosion did not appear without warning. Organized opposition to the consumption of alcohol was part of the American political landscape since shortly after the founding of the republic. Beginning with the creation of the first temperance organizations in Massachusetts during the 1820s, hundreds of thousands of Americans became involved in actions to reduce or eliminate the consumption of alcoholic beverages. Before the 1850s the vast bulk of activity involved moral and religious suasion. But the gradual breakdown of tight-knit, small-town life in developing towns and cities, the movement of men to the frontier, the economic and social dislocations caused by the Panic of 1837 and later monetary crises, and the arrival of large numbers of immigrants ruptured many of the links between social or religious disapproval and civic behavior. Groups seeking total prohibition of alcohol emerged by the mid-century. During the 1850s women pouring alcohol from smashed containers in bars became a fairly common activity. But the intensity and breadth of the Temperance Crusade in Southern Ohio, the spread of the movement to many other parts of the country, and the active public role played by large numbers of conservative women differed from any prior events.

The women who took to the streets of Hillsboro, Ohio, were not the sorts typically involved in organized, public, political movements with mass participation. They came, according to Charles Isetts, from the upper crust of town society—mostly women from white, wealthy, religious families of long standing in the community.⁶ He discovered that families with members in the Crusade owned the bulk of Hillsboro’s wealth, were virtually all white and native-born, and had male household heads with white-collar jobs or successful skilled craftsman positions. Only 5 percent of the Crusaders were immigrants. Perhaps the class and ethnic differences between the Crusaders and those they sought to stop fueled the stunning intensity and fervor of the Crusade. J. H. Beadle, the most frequent commentator in the Cincinnati Commercial on the demonstrations, certainly thought so. Several months into the movement he wrote that it was pitting Catholic against Protestant and native-born against German, as well as one political faction against another.⁷ The Crusade was a culture clash.

The leader of Ohio’s early temperance movement, Samuel Cary, was among the first to popularize prohibition. In 1847 he published a pamphlet, Cary’s Appeal to the People of Ohio, staking out the then growing belief that “moral appliance alone cannot arrest the traffic” in alcohol.⁸ In part because of Cary’s influence in the state, Ohio’s 1852 Constitution barred the granting of licenses to sell alcoholic beverages by localities, making it the responsibility of the General Assembly to “provide against the evils resulting” from the sale of liquor. The burgeoning Prohibition movement in the state, like those in many other areas of the country, was given an added boost by the adoption of the nation’s first prohibition law in Maine in 1851.⁹ Large petition drives surfaced in Ohio as part of a campaign to have Prohibition written into the new state constitution then being drafted. When that effort failed, campaigns to elect legislators willing to follow Maine’s example emerged.

Growth of the Prohibition movement was particularly important for women. They participated in circumscribed ways in church- or social service–based temperance activity through the mid-nineteenth century. But their inability to vote and the social stigma attached to their participation in political agitation led to a reduction in their role in the main national temperance organizations when their strategies shifted from working through churches and social organizations to seeking legal prohibition. Some women, including many in Ohio, remained comfortable using traditional methods of social pressure and continued their work outside the growing Prohibition movement. But more activist temperance and suffrage women found themselves cast aside from major Prohibition organizations.

The intensity of Prohibition activity continued to grow during the years before the Civil War and quickly reemerged when the fighting stopped. Immigration patterns and the growth in beer consumption clearly helped fuel the fire. The scale of German immigration before and after the war was enormous. Just over five hundred thousand immigrants arrived in the United States from Germany between 1852 and 1854—43 percent of all those finding their way to these shores in that short span.¹⁰ For the twenty years following the Civil War, Germans also were the largest national immigrant group. Many moved to the Midwest. Alcohol consumption patterns changed dramatically with their arrival. Beer, previously a minor beverage in America, began to be sold in large amounts after 1840. Sales grew dramatically after the Civil War.¹¹

The large growth in beer sales and the opening of large numbers of saloons, especially in places like southern Ohio where many German immigrants lived, exacerbated women’s fears that alcohol was affecting their home environments. The issue was not so much that more alcohol was being consumed, although more beer certainly was, or that only immigrants or blacks were doing the consuming. Both rich and poor were drinking.¹² The problem was a sense that the practice was decentralizing and disrupting normal methods of social control. Hard liquor could easily be kept on hand at home. No special storage methods were required. If male drinkers had to be controlled, women could put the bottles under lock and key. But beer required special storage and dispensing facilities not typically available in households. Men drinking outside the home became much more common. Saloons, as many drinking establishments came to be known in the 1850s, proliferated and emerged as distinctly male domains.¹³ Stories of men drinking in town, coming home drunk, wasting money, and beating up their families, while always present in cultural lore,¹⁴ became much more common and believable.

The final straw for the women of Hillsboro, Ohio, may well have been anger and frustration. Sale of liquor by the drink had been barred in Ohio since at least 1854,¹⁵ the same year that families obtained the authority to sue liquor dispensers for damages caused by their drunken relatives.¹⁶ But owners of saloons, drug stores, beer gardens, and other establishments selling alcohol routinely claimed that their payment of federal taxes and receipt of a federal tax stamp legitimated their trade. Ohio’s law, and similar laws in other jurisdictions, went largely unenforced by public authorities. Ballot initiatives in some towns made them legally “dry,” but saloons continued to do business.¹⁷ The failure of elected officials to take actions against those distributing alcohol led to substantial anger and frustration.

Some spectacular events began to occur. During the 1850s women in dozens of scattered communities formed bands to invade saloons and destroy their stocks of alcohol. They often obtained the tacit, and sometimes public, support and blessing of local religious leaders and male temperance societies. The war interrupted such actions. But the return of men, habituated to drinking during military service, to their prewar communities, the use of alcohol or beer as part payment of wages in many factories, the postwar onset of large-scale beer production, and the opening of many new saloons exacerbated the situation. Women who led wartime temperance activities sometimes were pushed aside as hostilities ended, adding to the level of discontent. When the major, male-dominated political parties showed little interest in temperance during the 1872 election and Ohio prepared for a constitutional convention in 1873, the moment was ripe for an activist women’s Prohibition movement to surface. All that was needed was a catalyst. Diocletian Lewis filled the bill.

Women in Men’s Domains: Setting the Tone

Typical nineteenth-century courtrooms, like the saloons that peppered the nearby landscapes, were not women’s territory. After the Civil War women appeared as trial witnesses or attended public court sessions from time to time, and they joined the legal profession in very small numbers.¹⁸ But the vast bulk of those present in courthouses across the nation—judges, jurors, court personnel, attorneys, and spectators—were men. There were exceptions, however, and at least two of them played an important role in the emergence of Hillsboro, Ohio, as the epicenter of the Crusade. One began some years before the Crusade in the nearby town of Greenfield, Ohio. A group of women in that town organized to shut down the liquor trade. As they marched in 1865 a woman whose son had been killed during a gun-toting saloon brawl became particularly incensed in front of the drinking establishment where the fight occurred. Her cries incited the women to use axes and other implements to destroy the saloon, as well as other taverns in town. Bar owners sued the women, and a trial commenced in Hillsboro early in 1867. There “the ‘first ladies’ of Hillsboro met the defendants when they arrived in town … ‘and escorted them to private homes, for generous entertainment during their stay … [and] also took seats with them during the trial, and in every possible way gave demonstration of the morality of the case.’”¹⁹ After a four-day trial Judge Albert S. Dickey ordered the women to pay $625 in damages.²⁰ But the proceeding was a precedent for women mobilizing to publicly support the most radical prohibition activities. Perhaps it was not an accident that the women of Greenfield were among the first to join the Crusade after it began in Hillsboro.

The second court proceeding was more remarkable. Suffragist Miriam Cole, in a letter she wrote puzzling over the public displays of temperance sentiment by women in Ohio,²¹ recalled a trial in Springfield, Ohio, that occurred just shy of a year before the Crusades erupted. It was a case brought under a dram shop act commonly known, in Ohio, as the Adair Law—an old statute amended as temperance activity intensified in 1870 to allow any person to sue bar owners and sellers of liquor to recover damages caused by an intoxicated buyer.²² “A woman whose husband had reduced his family to utter want by drunkenness, entered a suit against the rum seller,” Cole recalled. After the local paper published an appeal for help from the plaintiff to the women of Springfield, “a large delegation of the most respectable and pious women of the city came into the court.” After a week-long adjournment, “the excitement had become so great that when the trial came on the court-room was full of spectators, and the number of ladies within the rail was increased three-fold.” And most surprising of all to Cole, a woman—Mrs. E. D. Stewart—made the closing...