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Bradwell v. Illinois 16 Wallace 130 (1873)

BRADWELL v. ILLINOIS 16 Wallace 130 (1873)

Bradwell is the earliest fourteenth amendment case in which the Supreme Court endorsed sex discrimination. Mrs. Myra Bradwell, the editor of the Chicago Legal News, was certified by a board of legal examiners as qualified to be a member of the state bar. An Illinois statute permitted the state supreme court to make rules for admission to the bar. That court denied Mrs. Bradwell's application for admission solely on the ground of sex, although the fact that the applicant was married also counted against her: a married woman at that time was incapable of making binding contracts without her husband's consent, thus disabling her from performing all the duties of an attorney. She argued that the privileges and immunities clause of the Fourteenth Amendment protected her civil right as a citizen of the United States to be admitted to the bar, if she qualified.

Justice samuel f. miller, speaking for the Court, declared that the right to be admitted to the practice of law in a state court was not a privilege of national citizenship protected by the Fourteenth Amendment. Justice joseph p. bradley, joined by Justices noah swayne and stephen j. field, concurred in the judgment affirming the state court, but offered additional reasons. History, nature, common law, and the civil law supported the majority's reading of the privileges and immunities clause, according to Bradley. The "spheres and destinies" of the sexes were widely different, man being woman's protector; her "timidity and delicacy" unfit her for many occupations, including the law. Unlike Myra Bradwell, an unmarried woman might make contracts, but such a woman was an exception to the 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." Society's rules, Bradley added, ought not be based on exceptions. Chief Justice salmon p. chase dissented alone, without opinion, missing a chance to advocate the cause of sex equality, at least in the legal profession.

Leonard W. Levy
(1986)

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