Up from Coverture

"Equal justice under law," says the famous motto carved into the marble of the United States Supreme Court Building. Those words, according to a number of feminists and to thoughtful legal experts as well, have hardly applied to the American woman.

The legal precedents for discrimination against women date back to the beginnings of Western law itself.* In the classic era of Athens, women fitted approximately the same category as slaves. Early Roman law candidly referred to the "perpetual tutelage of women" and considered them to be under the manus (hand) of their fathers or husbands--one basis for the custom of bestowing the "hand" of a daughter in marriage. Though later Roman law began to extend a few rights to women, the coming of the Dark Ages took them back to the status of chattels. Passing through canon law into English common law and thence to the U.S., such a concept supported the classic Blackstone definition of "coverture," a doctrine that has survived in part to this day. Coverture, said Blackstone, means that "husband and wife are one person in the law; that is, the very being or legal existence of the woman is suspended during the marriage."

Consortium. In its most inflexible manifestations, this doctrine has meant, for instance, that a wife must take her husband's name, though she can use her maiden name professionally. Last week, specifically, the Supreme Court upheld a state's right to require a married woman to use her husband's name on her driver's license. Most states allow a husband to sue for loss of consortium if his wife is injured, while only a minority extend a parallel right to the wife when the husband is incapacitated. North Carolina and Missouri even allow a woman to defend herself against a criminal charge by arguing that her husband ordered her to commit the crime. >>

The husband's favored status does carry responsibilities, of course, chiefly that of supporting his wife and children. Men who have defaulted on their alimony obligations can wind up in jail. While support of children is legally the joint obligation of both parents, the financial part of that duty usually is put upon men after a divorce. (One study of ex-husbands in Wisconsin, however, found that fewer than 40% were making full payment a year after the divorce.) In 42 states there is no longer any specified legal preference on child custody, though judges tend to favor the mother, particularly for young children.

In divorces, the same grounds are now generally available to each party, and at least twelve states allow the awarding of alimony to either husband or wife. In the eight community-property states, all property acquired during the marriage is considered equally owned and so is equally divided if there is a divorce, but in seven of them the husband has control as head of the "community" during the marriage. In other states, each spouse may manage and own his or her income and property, though eleven states restrict a married woman's right to enter into a contract, and in no state does the law credit a wife with income for the household work she does for the family.

The ambiguities in the law's view of family life become even more ambiguous when the law involves the payment of Government funds. About 62% of welfare recipients are women heads of household and their dependent children. Some politicians have enjoyed scolding these helpless people as shiftless idlers, but despite the law's gesture of protectiveness, a woman alone raising children is scarcely loafing. Nor can she do much better by trying to find work, if work exists. One recent study showed that a mother of three, after training for one category of available Government jobs, would gross only an extra $22 a month--from which she would still have to pay any after-school baby-sitting costs.

The other main group of women who depend largely on Government-administered funds are single or widowed females over 65. Half of them--nearly 4,000,000--have less than $1,889 a year to live on, and the Social Security system quite openly discriminates against them. The pension is based on earned income, and "mere" housewives earn nothing during their years of work. Widows are entitled to survivors' benefits, but these are generally lower than a wage earner's pension. And a commercially employed woman generally earns less than a man. Thus all widowed or single women over 65 receive an average of less than $115 a month in Social Security, compared with an average $145 for such men. As Ralph Nader has put it, "our society encourages a woman to stay home and take care of her family, and then penalizes her later for not having worked."

The right to employment has caused some of the sharpest controversy. Back in the days of the sweatshops, feminists and some unions argued heatedly for the passage of maximum-hours laws and other protective measures. They won an occasional victory, complete with flourishes of male rhetoric. "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 Supreme Court declared in 1872, but it happened to be protecting women by allowing them to be barred from the practice of law.

Nowadays, "protective" measures are often regarded as discriminatory. The rules that prevent women from working late hours or lifting heavy loads take "beautiful care of women," New York's former Congresswoman Katherine St. George has said bitterly. "They cannot serve in restaurants late at night--when tips are higher and the load, if you please, is lighter. But what about the offices that are cleaned every morning about 2 or 3 o'clock? Does anybody worry about these women?"

The greatest job problem for women is not a matter of regulations but of intangible and hard-to-prove discrimination in hiring and promotion. Congress began to show its concern with a 1964 act that required equal pay for equal work. Later that year, it went much farther when it barred sex discrimination by employers, employment agencies and unions that affect interstate commerce. But the Equal Employment Opportunity Commission, which is supposed to enforce the law, has no power to bring suits on its own. Legislation currently pending would change that. "The lack severely handicaps the EEOC," contends Hawaii Congresswoman Patsy Mink. When it cannot get a voluntary change of an apparently discriminatory policy, EEOC must ask the Justice Department to go into court, and it can be turned down. Since 1964, Justice has filed only three sex-discrimination suits--though the Labor Department has prosecuted 330 alleged violations of the law of equal pay for equal work.

Fell Swoop. Individuals are also free to sue, of course, but uncertainties about the various legal recourses, fear of lawyers' fees and the hostility of employers have scarcely encouraged women to fight for their rights. One who did was Mrs. Ida Phillips, who sued the Martin Marietta Corp, in Orlando, Fla.. and got the Supreme Court to rule that a woman cannot summarily be barred from employment just because she has preschool children. Another was Mrs. Sally Reed, who challenged an Idaho law giving preference to men as administrators of estates

(TIME, Dec. 6). She won the first Supreme Court ruling that the equal protection clause of the 14th Amendment makes "arbitrary" forms of sexual discrimination unconstitutional.

Activists place their greatest hope in the proposed equal rights amendment to the Constitution. Such an amendment has been introduced in every Congress since 1923, and was actually passed by the House in 1970 and 1971. Two weeks ago, the amendment got by yet another hurdle when it was reported out of the Senate Judiciary Committee--for the first time without the addition of any compromising language. It still faces an uncertain future on the floor of the Senate, however.

Women's rights advocates insist that the amendment's wording should allow no compromise, even for military service, because, as Justice Department Lawyer Mary Eastwood has put it, then the amendment "in one fell swoop would require equal treatment of men and women." Equal treatment would not necessarily mean the end of a housewife's legal right to support from her wage-earning husband, but such a benefit would also have to be available to the husband who stays home with the kids while his wife works. In other words, the amendment's backers want the law to operate according to what a person chooses to do and is able to do, rather than according to sex roles.

Even without the amendment, though, strict application of existing law would eventually bring the same result. As Michigan Representative Martha Griffiths says: "There never was a time when decisions of the Supreme Court could not have done everything we ask today." Thoroughgoing equality under the law would not change every custom and practice, but social change is the more difficult without legal reform. In any case, "the articulation of legal protections for women has begun," says EEOC Legislative Counsel Sonia Pressman Fuentes. "Already women can echo the words of Martin Luther King: 'We ain't what we oughta be, we ain't what we wanta be, we ain't what we gonna be but thank God we ain't what we was.' "

*Women did better under some of the earlier non-European civilizations. In Babylonia, where Hammurabi's code was promulgated around 1700 B.C., women had certain rights to financial support and could engage in business. The Egyptians allowed women considerable control over property.

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