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Nov 30 2012

When Religion Controls the Law

Reading Jeffrey Toobin’s new book and came across this passage from a Supreme Court ruling in Bradwell v Illinois in 1872. The case was about whether the state of Illinois could ban women from being lawyers. In the initial case, the Supreme Court of Illinois said yes, they could — and quoted a religious rationale for doing so.

“It is to be further remembered that when our act was passed, that school of reform which claims for women participation in the making and administering of the laws had not then arisen, or, if here and there a writer had advanced such theories, they were regarded rather as abstract speculations than as an actual basis for action.”

“That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth.”

“In view of these facts, we are certainly warranted in saying that when the legislature gave to this Court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women.”

When Myra Bradwell appealed to the U.S. Supreme Court, that court also upheld the statute and cited an explicitly religious rationale:

It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the 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 interest 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, and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most states. One of these is that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.

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.

It got me wondering if there has ever been a single instance in the history of American courts that a religious rationale has ever been offered to justify extending an equal right rather than denying it. I can’t think of any. The other instance that comes to mind is in the original trial in the case of Loving v Virginia, where the judge said:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

I wonder if anyone has ever done a complete study of court rulings in this country and all the instances where the courts offered up a religious justification for its decision.

18 comments

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  1. 1
    Ray Ingles

    I suppose some people may have offered religious rationales for, say, ending slavery. I’m not sure they ever did in legal pleadings, though. Anyone know of examples?

  2. 2
    Draken

    But, but, I thought racism was a consequence of Darwin’s theory?

  3. 3
    John Pieret

    “In view of these facts, we are certainly warranted in saying that when the legislature gave to this Court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women.”

    Now that’s a court Scalia would be comfortable sitting on. Do you suppose we could get George Soros to lend us that time machine he used to go back and plant President Obama’s birth announcements in the local papers to send Scalia back to the 1870s? He (and the rest of us) would be so much happier!

    I wonder if anyone has ever done a complete study of court rulings in this country and all the instances where the courts offered up a religious justification for its decision.

    I’m not aware of any but it would be interesting to see.

  4. 4
    jamessweet

    Excellent question. I suspect there probably has been, but it would be really interesting to know.

    One thing that complicates it is the use of religious language to express enlightment ideals, e.g. some of the phrases in the Declaration of Independence (not that that is jurisprudence, but it’s the first example of the phenomenon that comes to mind) like “endowed by our Creator with certain inalienable rights”. That’s not really a religious justification, but you could probably spin it that way.

  5. 5
    chuckcain

    Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

    That would also seem to indicate that God never intended for Europeans to come to the Americas. Oops.

  6. 6
    composer99

    There’s a syncretist mix of Christian & “nature-as-moral-agent” thought in there:

    On the contrary, the 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. [Emphasis mine.]

    I suppose it’s not surprising that the appeal to nature is a fallacious form of argument of longstanding pedigree.

  7. 7
    Gretchen

    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 natural and proper aggressiveness and arrogance which belongs to the male sex evidently unfits it for many of the occupations of civil life.

    Oh, sorry, I just mean Antonin Scalia.

  8. 8
    Michael Heath

    Supreme Court of Illinois:

    when the legislature gave to this Court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women.”
    [emphasis added - MH]

    This is fundamentally flawed reasoning via the equal protection clause of the 14th Amendment. This court first needs to determine whether the state legislature has the power to deny women equal protection under the law relative to the men. Where they clearly would not.

    The U.S. Supreme Court responds:

    It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex.
    [emphasis added - MH]

    Notice how the SCOTUS correctly introduces the existence of immunities and their obligation to consider those immunities, not merely consider the case within the context of privileges alone.

    Now the 14th Amendment changes the Article IV ‘privileges and immunities’ to the more expansive protection of ‘privileges or immunities. However, I don’t have a quibble with the SCOTUS using the ‘and’ operator here since it appears to me there are two hurdles to meet which justifies use of the ‘and’ operator:

    1) Whether the state has to protect the right for women to be considered equal to men, where I see:

    a) no power delegated to government to deny women their right to be considered based merely on their sex or,
    b) men have no superior right which allows the government the power to deny women the protection of their right to apply.

    2) Women meeting certain criteria just like men would to enjoy the privilege of lawyering.

    Since the Illinois court avoided the very hurdle which had it acting in an unconstitutional manner, this failure by the Illinois court should have been sufficient to overturn the Illinois court since they fail to consider this plaintiff’s claims under her 14th Amendment rights.

    Ed writes:

    It got me wondering if there has ever been a single instance in the history of American courts that a religious rationale has ever been offered to justify extending an equal right rather than denying it.
    [emphasis added - MH]

    I think the better word here would be “protecting” an equal right, rather than “extending” it. Perhaps I’m wrong but I don’t know what this means, on a subject where people are constantly confusing the source of rights versus the powers and obligations of government.

    As Ed already knows and others who read my comments. I think the whole paradigm people consider rights is flawed. That’s in terms of many people trying to arbitrarily conjure up whether a right exists or not. Where I argue our rights are limitless and instead, we should look to see whether the government has the:
    1) power to limit or prohibit the exercise of a right,
    2) the obligation to protect a particular right, or
    3) obligation to protect a right at the expense of another’s right.

    Based on my paradigm, which I’ve yet to see break down under scrutiny, I’ve been reading some cases to see exactly how SCOTUS justices write and whether it’s consistent with what I propose here. So far, it is consistent. For example, in the Bong Hits for Jesus case, J. Thomas doesn’t argue that students don’t have speech rights at school, but he instead argues the state doesn’t have to protect that right where he defectively goes into cherry-picked history to point out schools which deprived their students of even non-disruptive speech as if that abuse of power is sufficient to continue to deny students their right to exercise non-disruptive speech.

  9. 9
    gshelley

    I wonder what Scalia would make of it. Unless I am mistaken, he changed his mind over whether equal protection applies to women

  10. 10
    drr1

    I read these quotes – without putting them into any temporal context – when we start studying equal protection in my Con Law II class. About half of the students are aghast, and the other half just LOL. It introduces them to the idea – one that most of them intuitively already get – that sometimes, we need heightened scrutiny to deal with institutionalized, socio-economically pervasive discrimination. Of course, when I give them the time frame, they immediately catch on. But it’s always fun to watch their faces when I start to read this stuff. Good times.

  11. 11
    laurentweppe

    It got me wondering if there has ever been a single instance in the history of American courts that a religious rationale has ever been offered to justify extending an equal right rather than denying it

    Probably because when progressively minded religious people write laws, they tend to deliberately avoid putting religious jargon in it. You don’t see “The creator demands that every of His Children be provided health insurance” in the Obamacare text; or, “By the Almighty’s will, No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

  12. 12
    wandaiwc

    G-d created “Men” meaning “women and men” to “worship him” and gave “Men” all resources…upon “sin” of “Men” women became subject to men and men had to labor…When the “Messiah” the son of Men…not G-d; returned and died in the flesh and raised in the spirit…our sins were forgiven and eternal life was given in the spirit and “restoration” of Men to the laws of G-d is the beginning of order….

    Women are no longer subject to men….study theology and get smart..

  13. 13
    Sastra

    wandaiwc #12 wrote:

    Women are no longer subject to men….study theology and get smart..

    Heh, that was funny. So you think everybody who studies “theology” agrees with each other? And with you?

    Arguments over what God wants can’t really be arbitrated. But bad arguments over what Nature “intends” are open to being overthrown. That’s because we don’t attack them by bringing up theology: we can attack them through studying nature better.

    That means bad arguments based on nature are, sooner or later, doomed. They fall to science.

    Bad arguments based on God, however, are, as we see through wandaiwc’s valuable contribution here, likely to go on forever. If we use theology, that is.

    Let’s try using science.

  14. 14
    Ed Brayton

    Michael-

    There was more I could have added about the case and left out to avoid getting off on a tangent. Interestingly, this was a case just after the Slaughterhouse cases, which essentially read the privileges or immunities clause out of the 14th amendment entirely. That has caused major problems for the past 140 years as the court has tried to justify rulings that should have relied on that clause under the due process clause instead. It’s one of the weirder little quirks in con law.

  15. 15
    Valde

    quote: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”

    And many misogynists still use this argument today, when arguing against everything from a womans right to equal pay, to the right to vote, and to abortion (women have a spiritual calling, and that calling is to make babies–abortion and contraception disrespect a womans God-given job to be a baby factory).

    I hate essentialists with a passion.

  16. 16
    anandine

    Michael Heath @8, a careful and thoughtful comment, as one expects from you. I do, however, seem to disagree with you entirely about the extent of rights. You wrote, I argue our rights are limitless.

    I however, believe that all “rights” are conventional, that they arise in a culture the way language and morals and tastes do, to suit the needs of that culture. They are a sort of sum of what we think people should be able to do.

    This is the humanist approach. The opposite is what I would call the transcendental approach, believing that rights are either given by god or embedded in the fabric of the universe. They just are and do not need argument.

    I would hate to impute to you this particular belief based on the short statement that rights are limitless. I would agree that I would like us to have reasonably limitless “rights” in the US. I just don’t think it’s a fact of nature, just a personal preference, and in most cases I don’t care much how other cultures or subcultures organize themselves.

  17. 17
    eric

    @12

    .study theology and get smart..

    After you study English. Excessive capitalization, unnecessary quotation marks, and elipses galore. Oh, and your God is supposed to be omniscient. You think he’s okay with writing his name down merely substituting a – for an o?

  18. 18
    Michael Heath

    anandine writes:

    I however, believe that all “rights” are conventional, that they arise in a culture the way language and morals and tastes do, to suit the needs of that culture. They [rights] are a sort of sum of what we think people should be able to do.
    [emphasis mine - MH]

    I find this approach both chilling and anti-liberty, i.e., the whole idea some majority could define what is and what is not a right based on their moral precepts or even political or cultural ambitions.

    From a practical perspective I realize the exercise of our rights are sometimes prohibited, frequently limited, and oft-times ignored when it comes to the protection of those rights by the government. But the onus should be on the government to find the authority or the lack of obligation to deny me the exercise of my rights. We’re in a deep hole of tyranny if we have to first prove our rights exist.

    How does one even go about proving such in this sort of paradigm? Gays have the right to marry because the now culture can accept such a novelty, based on the majority’s timeline of tolerance? I would argue gays have always had the right to marry; where government has failed its “just governance” standard precisely because it didn’t protect this right of gays equal to heterosexuals’ right to marry.

    anandine writes:

    This is the humanist approach.

    I’d be happy getting a cite on this, not because I’m skeptical,but instead because I’m interested in hearing more on how humanists can assert sufficient moral authority to tell others what their rights are or are not. That sounds very similar to the approach taken by Christianists, except they merely use a different perspective.

    anandine writes:

    The opposite [of anandine's humanist approach to rights] is what I would call the transcendental approach, believing that rights are either given by god or embedded in the fabric of the universe. They just are and do not need argument.

    I’m arguing for a slightly different approach than the nature of the universe argument, based on my reading of Randy Barnett thought that was several years ago so perhaps my approach has diverted a bit.

    I do accept the assertion by T. Jefferson that our rights are inalienable while disagreeing that’s “self-evident”, but they’re inalienable only as a practically effective artifice. Instead I think we’re better served veering off to a more utilitarian approach without having to defend the idea our rights are part of the laws of nature as Jefferson asserted. My approach is instead that any attempt to define rights would be arbitrary and therefore deeply flawed. That we can better defend liberty and optimize justice by instead using a different approach. That approach would be to look to what action we expect from government as I noted in my previous comment; which I repeat here. Does the government have:

    1) the power to limit or prohibit the exercise of a particular right?
    2) The obligation to protect a particular right? Or,
    3) the obligation to protect a right at the expense of another’s right? The answer to this question is admittedly awkward, but far superior to muddle through this subset of cases than muddle through all cases involving rights.

    anandine writes:

    I would hate to impute to you this particular belief based on the short statement that rights are limitless. I would agree that I would like us to have reasonably limitless “rights” in the US.

    It appears to me that you demonstrate a perfectly illustrative misunderstanding of how rights relate to government powers and why the paradigm so many often use, of seeking to discover rights, is fundamentally flawed. The existence of a right is in no way equivalent to an obligation by the government to act; either to protect the right or consider it when weighing the proper protection or limitation of the rights of others.

    Because our rights are effectively limitless, trying to define the existence of such is a futile exercise, especially when on the other hand, we’ve limited the powers of government which by definition allows us to fairly succinctly define government’s delegations of powers and obligations on what it must do.

    Here’s Randy Barnett discussing the debates within the 1st Congress House of Representatives when they were debating the development of a Bill of Rights. The text is on page 59 of the first paperback printing of Restoring the Lost Constitution [page 58 in Amazon's Search inside this book feature]:

    [Rep. Theodore] Sedgwick’s argument implicitly assumes that the “self-evident, unalienable,” and inherent liberty rights retained by the people are unnumerable because the human imagination is limitless. All the actions one might take with what is rightfully his or hers can never be specified or reduced to a list. It includes the right to wear a hat, to get up when one pleases and go to bed when one thinks proper, to scratch one’s nose when it itches (and even when it doesn’t), to eat steak when one has a taste for it, or take a sip of Diet Mountain Dew when one is thirsty. Make any list of liberty rights you care to and one can always add twenty or thirty more.

    Therefore Barnett goes on to both conclude and report, the House passed James Madison’s 9th Amendment. That the Bill of Rights is not an all-inclusive listing of our rights.

    anandine concludes:

    I don’t care much how other cultures or subcultures organize themselves.

    I have no desire for Christianists like Rick Warren to round up a majority in order to leverage the power of the government to rule on what rights I can or can not exercise. A critical difference between liberalism and democracy is that liberalism demands the protection of certain individual rights and that government be just. Where the protection of rights for some must be equal to the protection afforded to others. This standard isn’t feasibly applied if others define our rights, it is feasible if we compare how government must act relative to a ‘just governance’ standard such as the DofI and ratify a Constitution that makes it very difficult even for a supermajority to leverage government power to deny us the equal exercise of rights.

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