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Combating Sex-Based Prejudices in Jury Trials Through Voir Dire Mark Soler

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Combating Sex-Based Prejudices in Jury Trials Through Voir Dire Mark Soler Santa Clara Law Review Volume 15 | Number 3 Article 1 1-1-1975 A Woman's Place...: Combating Sex-Based Prejudices in Jury Trials through Voir Dire Mark Soler Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Mark Soler, A Woman's Place...: Combating Sex-Based Prejudices in Jury Trials through Voir Dire, 15 Santa Clara Lawyer 535 (1975). Available at: http://digitalcommons.law.scu.edu/lawreview/vol15/iss3/1 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. "A WOMAN'S PLACE .. .": COMBATING SEX-BASED PREJUDICES IN JURY TRIALS THROUGH VOIR DIRE Mark Soler* [Women] are declared to be better than men; an empty com- pliment, which must provoke a bitter smile from every woman of spirit, since there is no other situation in life in which it is considered the established order, and quite natural and suit- able, that the better should obey the worse.' The attempt to force a jury to become mentally blind to the [appearance] of the accused sitting before them involves both 2 an impossibility in practice and a fiction in theory. I. INTRODUCTION In the law, as in the other institutions of our society, women have long been subject to sex-based discrimination.' A classic @ Copyright, 1975, by Mark Soler. All rights reserved. * B.A. 1968, J.D. 1973, Yale University; member, California Bar. The author is presently associated with the San Francisco Community Law Collective. The author would like to express his appreciation for the assistance and con- tributions of San Francisco attorneys Mary O'Hare, Anne Flower Cumings, and Paul Harris. 1. J.S. MILL, THE SUBJECTION OF WOMEN (1869). 2. Boykin v. People, 22 Colo. 496, 45 P. 415 (1896). 3. On discrimination against women within the substantive law, see generally KANowrrz, WOMEN AND THE LAW (1969) [hereinafter cited as KANowrrz]. On sexist discrimination in the legal status of women, see generally PRESI- DENT'S COMMISSION ON THE STATUS OF WOMEN, AMERICAN WOMEN (1963) and REPORT OF THE COMMITTEE ON CIVIL AND POLITICAL RIGHTS (1963); CITIZENS' ADVISORY COUNCIL ON THE STATUS OF WOMEN, REPORT OF THE TASK FORCE ON FAMILY LAW AND POLICY (1968), REPORT OF THE TASK FORCE ON HEALTH AND WELFARE (1968), REPORT OF THE TASK FORCE ON LABOR STANDARDS (1968), and REPORT OF THE TASK FORCE ON SOCIAL INSURANCE AND TAXES (1968); THE PRESI- DENT'S TASK FORCE ON WOMENS RIGHTS AND RESPONSIBILITIES, REPORT: A MAT- TER OF SIMPLE JUSTICE (1970); WOMEN'S BUREAU, U.S. DEPT. OF LABOR, HAND- BOOK ON WOMEN WORKERS (1969); Cavanagh, "A Little Dearer than His Horse": Legal Stereotypes and the Feminine Personality, 6 HARv. Civ. RIGHTS-CIV. LIB. L. REv. 260 (1971); Seidenberg, The Submissive Majority: Modern Trends in the Law Concerning Women's Rights, 55 CORN. L. REV. 262 (1970), all cited in Brown, Emerson, Falk, and Freedman, The Equal Rights Amendment: A Con- stitutional Basis for Equal Rights for Women, 80 YALE L.J. 871, n.2 (1971) 1hereinafter cited as The Equal Rights Amendment]; Schulder, Does the Law Oppress Women? in SISTERHOOD IS POWERFUL 139 (R. Morgan ed. 1970); Rawalt, SANTA CLARA LAWYER [Vol. 15 statement of sexism in the substance of the law is Blackstone's explanation of coverture as the legal status of the wife during marriage: By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the women is sus- pended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover she performs every thing. For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself. .... 4 The United States Supreme Court long embraced the attitude toward women implicit in Blackstone's treatise. In 1884, the Court declared that "[t]he right to follow any of the common occupations of life is an inalienable right . formulated in the Declaration of Independence . a large ingredient in the civil liberty of the citizen. ' 5 The Court subsequently struck down statutes and ordinances which restricted the ability of men, citizens or non-citizens, to follow "the common occupations of life,"6 and, in Truax v. Raich, it declared that [i]t requires no argument to show 'that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [fourteenth] amendment to secure.7 When it came to women, however, the Supreme Court saw things in a diffent light. When Myra Bradwell sought to prac- tice law in Illinois, the Court upheld the denial of a license to her on the ground that she was unfit to practice law because she was a woman. Justice Bradley declared: 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.8 Litigating Sex Discrimination Cases, 4 FAMILY L.Q. 44 (1970); The Equal Rights Amendment, supra. 4. W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, Bk. I, Ch. 15, 442-43 (1774). 5. Butcher's Union Co. v. Crescent City Co., 111 U.S. 746, 762 (1884). 6. Truax v. Raich, 239 U.S. 33 (1915) (cook); Smith v. Texas, 233 U.S. 630 (1914) (freight train conductor); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (laundry operator). 7. 239 U.S. 33, 41 (1915). 8. Bradwell v. Illinois, 83 U.S. 130, 141 (1873) (Bradley, J., concurring). Mr. Justice Bradley added: 1975] VOIR DIRE While "protective" legislation fixing maximum hours of labor for men had been struck down,9 the Court upheld an Oregon statute fixing the maximum number of working hours for women, and its rationale was clear: That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continu- ance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physi- cal well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race. Still again, history discloses the fact that woman has always been dependent upon man. He established his con- trol at the outset by superior physical strength, and this con- trol in various forms with diminishing intensity, has continued to ,the present.10 Discrimination against women is no less evident in the prac- tice of law and in the courts. In 1967, for example, of the 300,000 lawyers in America, fewer than 3 percent were women." This same study revealed that women lawyers earned about $2,000 less per year than do men upon graduation from law school; five years later, the differential is about $4,000, and nine years later, almost $8,000.12 Significantly more women attorneys spend their time doing trust and estate work or handling domestic relations problems; significantly more men handle litigation or work in the corporate area.' 3 The differences in income or work' area clearly have nothing to do with the relative abilities of men and women. In a study of twenty-five hundred law school gradu- ates, no significant differences were found between men and women either in class rank in law school or in participation on 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 des- tiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases. ld. (emphasis added). 9. Lochner v. New York, 198 U.S. 45 (1905). 10. Muller v. Oregon, 208 U.S. 412, 421-23 (1908). See also Goessaert v. Cleary, 335 U.S. 464 (1948), upholding state statutes prohibiting women from particular occupations, such as the Michigan statute which forbade women from working as bartenders unless they were the wife or daughter of the male owner. 11. White, Women in the Law, 65 MICH. L. REV. 1051 (1967). 12. Id. at 1054-57. 13. Id. at 1062-64. SANTA CLARA LAWYER [Vol. 15 the law review. 14 The number of women holding federal district court or court of appeals judgeships can be counted on two hands. And, of course, no woman has ever been appointed to the United States Supreme Court. Sexism is also part and parcel of the American jury system.
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