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This provides an investigation of gender and the law in the United States. The author describes legal developments over the past two centuries against a background of historical and sociological changes in women's activities and attitudes toward these new developments. She shows the way cultural perceptions of gender influence, and in turn are influenced by, legal constructions, and what this complicated interaction implies about the possibility - or impossibility - of using law as a tool of social change.
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Justice and Gender T JUSTICE AND GENDER Sex Discrimination and the Law ... Deborah L. Rhode HAR\lARD UNIVERSITY PRESS Cambridge, Massachusetts London, England Copyright © 1989 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America This book has been digitally reprinted. The content remains identical to that of previous printings. First Harvard University Press paperback edition, 1991 Library of Congress Cata/oging-in-Pub/ication Data Rhode, Deborah L. Justice and gender: sex discrimination and the law / Deborah L. Rhode. p. cm. Bibliography: p. Includes index. ISBN 0-674-49100-9 (alk. paper) (cloth) ISBN 0-674-49101-7 (paper) 1. Sex discrimination against women-Law and legislationUnited States-History. I. Title. KF4758.R48 1989 342.73'0878-dc19 89-30854 [347.302878] CIP Designed by Gwen Frankfe/dt For Ralph Acknowledgments T his book has been in every sense a collaborative venture. It owes greater debts to a greater number of individuals than I can ever adequately acknowledge. Only through their insights, assistance, and support has this work been possible. I hope these individuals will forgive me for not acknowledging each of them personally. My reluctance to do so stems only from a concern that the list of those who deserve credit is so long and extends over so many years that I would inadvertently omit some who deserve recognition. Many colleagues gave generously of their time and talents in reading parts of the manuscript. Research assistants provided invaluable help at all stages. Students and participants in working seminars offered insights that I have tried to incorporate throughout the book. Stanford Law School librarians tirelessly pursued large volumes of materials from inaccessible sources. Financial support was contributed by the Stanford Legal Research Fund, made possible by a bequest from the Estate of Ira S. Lillick, and by gifts from Roderick E. and Carla A. Hills and other friends of the Stanford Law School. Staff and affiliates of the Institute for Research on Women and Gender at Stanford provided unfailing wisdom and support. There are, however, a few colleagues who have suffered through so many aspects of this work that I cannot fail to single them out for special thanks., Barbara Allen Babcock and Jan Clifford Costello offered essential guidance and encouragement. Lindsay Waters at Harvard University Press patiently shepherded me through various drafts. Matthew Dubuque, Dee Gustafson, and Marilyn Hershey provided incalculable help in preparing the manuscript for publication. Most of all, Ralph Cavanagh offered support, insight, and judgment beyond what I can ever express. vii Acknowledgments To each of these individuals I am deeply grateful. My greatest desire is that all those who have given so much to the process are able to recognize something of their contributions in its outcome. D.L.R. Stanford, California Contents Introduction 1 Part One. Historical Frameworks 7 1. Natural Rights and Natural Roles Domesticity as Destiny The Emergence of a Feminist Movement Nineteenth-Century Legal Ideology: Separate and Unequal 2. The Fragmentation of Feminism and the Legal