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.