Conference Report: American Society for Legal History
(November 7-10, 2013, Miami, Florida)
with Lauren MacIvor Thompson
Ph.D. Candidate at Georgia State University (Atlanta, Georgia)
Current disability scholarship is well aware of its close linkages with the law; my own work puts a twist on these connections by throwing in the problem of gender. Historically, women have been considered mentally and physically disabled by the very nature of their bodily make-up. The presumption of women’s inherent mental disability undergirded early laws of coverture and property, but even after these laws changed in the late nineteenth century, the legal status of women continued to be subject to medical rationalizations for discrimination. Part of my dissertation project asks how medicine and eugenic theory interacted with ideas about women and the law of domestic relations – matters of marriage, divorce, child custody and involuntary commitment. I am immensely grateful to the Disability History Association for helping to fund my travel to the 2013 meeting of American Society for Legal History (which took place in Miami, FL November 7-10, 2013), to further explore these topics.
The Friday keynote address by the University of Michigan’s Rebecca J. Scott formed an ideal foundation for my thinking on the relationship between women, legal disability and citizenship, especially if that relationship was complicated by the status of being a free black before the Civil War. In her talk, “Social Facts and Legal Fictions: Eulalie Oliveau and the Right of Property in Persons,” Scott laid out for the audience the complex relationships between whites, free, and enslaved blacks in antebellum Louisiana. She told the story of Eulalie Oliveau, an enslaved woman who lived free for decades, having been given permission by her owners to marry and move in with her husband, away from the plantation where she was born. After her original owners died, their relatives tried to retake possession of Eulalie and her children and sell them, relying on the state’s recognition of their permanent legal status as slaves, rather than the prescriptive right to freedom that Eulalie’s public life would have otherwise given. Scott explained how Eulalie’s civil unfreedom continued to exist, even before anybody exercised a property claim over her person. The talk made me think broadly about my own work and the implications for women in marriage, whose own legal fiction of “coverture” created a persistent status of non-citizenship for all women.
Wonderful panels throughout all three days of the conference enriched and complicated these implications further. Scholars Rena Lauer and Alison Lefkovitz in their panel, “Women, Law and Marital Crisis” presented a broad assessment – temporally, geographically, and thematically – of how women utilized the court system to gain redress for marital grievances, even as marriage and divorce laws changed radically. Lauer’s paper examined Jewish women and marital lawsuits in Venetian Crete, focusing on how the politics and social structure present in the late medieval colony encouraged Jewish women to turn away from the rabbinical courts and utilize the secular courts to demand alimony, clothing allowances or adjudicate contractual battles. Lauer pointed out this system helped to make Jewish women active legal actors in ways that the rabbinic court system could not. Similarly, Lefkovitz’s paper dealt with women and marriage but in a far different setting – in Illinois in the late 1960s and early 1970s. She argued that a virtual revolution in marriage took place during this period, ironically, not only driven by feminists but also by men’s rights groups who protested the punishing nature of alimony in divorce settlements and the inherent unfairness of the “home-maker breadwinner model” that presumed all men worked while all women stayed at home. Lefkovitz proposed that this revolution was also in part carried about by legislatures and activist courts and judges, who replaced older alimony and divorce laws that had generally provided for more financial support of women, with “no-fault divorce” – a gender-neutral set of laws governing the distribution of property and earnings at the end of the marriage. Lefkovitz exposed in her paper the complex< outcomes of these transformations – by legally increasing ex-wives’ financial responsibility, it often forced homemakers to both work a job, and do the bulk of household labor. While housework began to have monetary value in divorce court settlements, wages for women’s work< remained low across the board. Ironically, both feminists and men’s rights groups changed divorce laws in this period, destroying the “breadwinner-homemaker model” but whether gender equity was gained, as Lefkovitz concluded, was debatable. Both Lauer and Lefkovitz’s analyses consider the myriad ways in which the rules surrounding female legal personhood were consciously constructed and considered by the court system in different times and places. As these scholars show, the relationship between the law and property distribution was gendered in particular ways.
Presenter Allison Tait also addressed this last point in a fascinating paper entitled “Married Women Making Wills: The Right to Devise Separate Property in Early Modern England” on the panel “Inheritance Law and Legal Actors in England and America.” Speaking on the topic of how married women could avoid the strictures of coverture by creating separate estates before marriage – made for their “sole and separate use,” (and not available to their husbands or their husbands’ creditors!), Tait outlined how the traditional perception of these estates as a way to protect family wealth also helped to entrench women as capable legal actors, and marked a transformation in the way society viewed women in marriage – as individuals with separate legal and personal interests. She argued that the legal remedy of the separate estate was a marker for the division in gender roles that would characterize the transformation from the eighteenth to the nineteenth centuries, and that women identified themselves as part of the process of family wealth-gathering when utilizing these laws. Yet the centrality of the institution of marriage continues to impact women’s legal status in multiple ways, even in the modern United States, as Kristin Collins, Rebecca Rix, and Serena Mayeri discussed on a panel titled “Entitling Marriage, Contesting the Family.” Even as women gained more legal rights and full citizenship status, marriage law continued to shape the courts response throughout the twentieth century to other issues including labor, immigration, federal entitlements and illegitimacy in ways that were harmful to women, children and non-white families. As panel chair Linda Kerber pointed out, the law’s responses reinforced the determination of the state to protect “the family” as they knew it.
Attending this conference was not only invaluable for expanding my understanding of the laws of coverture, marriage, divorce and alimony, but I also made connections with other scholars and graduate students that will prove to be useful for future collaborative projects.
Many thanks again to the DHA for their financial help in facilitating this very productive trip to Miami.