From Coverture to Supreme Court Justice Women Lawyers and Judges in Oregon History

RESEARCH FILES From Coverture to Supreme Court Justice Women Lawyers and Judges in Oregon History by Janice Dilg These are really great women and they’re doing great things for women in law. — Agnes Petersen1 WOMEN WHO ADVOCATED for of the legal profession to serving at the right to vote understood that every level of the judiciary in our state enfranchisement was only one step in and nation. full citizenship. With the vote, women The U.S. District Court of Oregon could pursue a range of economic, is the trial court of the federal court civil, and social rights by holding elec- system. Each state in the country has tive office, serving on juries, changing at least one district court, and Oregon’s laws, making laws, and enforcing laws. District Court began with statehood in The U.S. District Court of Oregon 1859. Matthew Deady was appointed Historical Society Oral History Col- the sole U.S. District Judge for Oregon, lection reveals much about the women and he remained the only Oregon who changed both the legal profession District judge for approximately the and the laws of Oregon. Oral histories next three decades. Today, the U.S. of women in this collection span from District Court of Oregon consists of the latter decades of the nineteenth twenty-five Article III, Magistrate, century into the first decade of the and Bankruptcy Court judges based twenty-first. During that time, women in Eugene, Medford, Pendleton, and moved from not having the right to Portland and is currently led by Chief vote or serve on a jury to having law Judge Ann Aiken, who became Chief degrees and working in every aspect in 29. Members of the U.S. District OHQ vol. 113, no. 3 © 212 Oregon Historical Society OHS digital no. bb OHS digital no. 175 Women judges pose for a photograph at the investiture ceremony of Betty Roberts as Associate Justice of the Oregon Supreme Court on February 8, 1982. From left to right are: Mercedes Deiz, Circuit Court, Multnomah County; Laurie Smith, District Court, Lane County; Roberts; Jean Lewis, Senior Judge, Circuit Court, Multnomah County; Helen Frye, Federal District Court, Portland; and Kathleen Nachtigal, Circuit Court, Multnomah County. Two women judges not pictured are Kimberly Frankel and Linda Bergman, both of District Court, Multnomah County. Court of Oregon formed a historical ing: Clerk of Court, law librarian, U.S. society in 198 with the mission “to Attorney, and the first male African collect, study, preserve, analyze, and American U.S. Marshal. Due to the disseminate information concerning longevity of the project, the USDCHS the history, development, character, Oral History Collection brings con- operations, and accomplishments of siderable breadth and depth to the the United States District Court for history of Oregon’s federal judiciary the District of Oregon.”2 and of the legal profession in the state. Since 1988, the U.S. District Court of Changes over time in the state’s three Oregon Historical Society (USDCHS) law schools, in the practice of law, and and the Oregon Historical Society have in how the federal court operates are partnered to collect more than 15 well documented. The collection also oral histories of judges, lawyers, and covers landmark decisions by Oregon individuals who are vital to the func- District Court judges that affect tioning of the District Court, includ- national as well as regional issues, such Dilg, Women Lawyers and Judges in Oregon History 1 as: Judges Robert Belloni and James and judges entered law school from Redden’s rulings in United States v. the late 19s to the present and began Oregon (199) about Native fishing practicing law after the passage of the rights and salmon recovery; Judge Civil Rights Act of 194 and Title IX Garr King’s rulings on the federal gov- in 1972. The Civil Rights Act’s Title ernment’s use of warrantless wiretaps XII section prohibits employment and a defendant’s access to evidence discrimination by race, gender, or in Al Haramain Islamic Foundation v. national origin, while Title IX requires US Department of the Treasury (211); gender equity for males and females and Magistrate Judge John Jelderks’s in every educational program that decisions on the disposition of ancient receives federal funding. Together, human remains found along the banks the two laws changed the cultural and of the Columbia River near Kenne- professional landscape for women and wick, Washington, in Bonnichsen v. fostered their burgeoning numbers in United States (24). King and Jelderks the legal profession. In 1947, women also have been leaders in accepting oral comprised . percent of enrollment history as valid evidence in court. in Juris Doctor (J.D.) degree programs The twenty-six interviews with in law schools. By 1974, that figure had women lawyers and judges contained risen to 2.1 percent, and in 211, the in the collection provide a look at the percentage of women enrolled in J.D. personal and professional obstacles degree programs reached 47.2.4 they overcame in gaining access to But the intersection of women and education, employment, and career the law in Oregon and the United States advancement in the practice of law. has a more complex history that pre- At this point, the oral history collec- dates the mid twentieth century, long tion largely captures the experiences before women’s entry into the legal of many of the “firsts” in Oregon profession. Women’s lives in America women’s legal history — pioneering were circumscribed by common law, women who broke down gender bar- imported to this continent by English riers at law schools, private law firms colonists. Marriage and property laws, and government agencies, and at all or “coverture,” stipulated that a mar- levels of the bench and bar and other ried woman, or femme covert, did not legal professional organizations. have a separate legal existence from her That “first generation” of women husband. That inequality spurred the lawyers is defined here as spanning first Woman’s Rights Convention at from 192 to 197, when narrators were Seneca Falls in 1848, resulting in a “Dec- often the only woman, or one of two laration of Sentiments” that offered or three, in their law school class and an outline for redress to the laws that the first or second to be hired into a prohibited women from being full private law firm or by a city, county, persons and citizens.5 state, or federal judicial agency. The Women made minimal inroads into “second generation” of women lawyers voting rights before the full suffrage 2 OHQ vol. 113, no. 3 achieved for most Oregon women in determined that a minimum-wage 1912, but upholding even those gains law for women was unconstitutional. required careful vigilance. An 1878 Justice George Sutherland, writing the Oregon statute provided that citizens majority opinion, noted that with the who met certain age, property, taxa- enfranchisement of women three years tion, and residency requirements could earlier, “the ancient inequality of the vote in school elections. When Eugene sexes, otherwise than physical” had resident Laura Harris attempted to been brought “almost to the vanish- vote in a local school election in 1897, ing point,” negating the constitutional election judges prohibited her from basis for protective, or class, legislation doing so. Harris brought suit, and the for women.7 Oregon Supreme Court upheld the One ironic aspect of the relation- right of taxpaying women to school ship of women and the law is that suffrage in Harris v. Burr (1898). women could practice law in the As more women became wage United States before gaining the right earners during the first decades of the to vote. Acceptance of women into law twentieth century, they also frequently schools and into the practice of law sought redress through the courts. Two was protracted over many decades and important laws for working women included many firsts.8 nationally originated in Oregon. In Oregonian Helen Althaus came 1903, Oregon’s “Ten-hour law” deter- to the practice of law after a career mined the maximum number of hours as a chemist. Graduating from the an employer could require a woman Northwestern College of Law in 1945, to work in a day and a week. The she became the first female federal law resulting case, Muller v. Oregon (198), clerk in Oregon, a position she held advanced through Oregon’s courts to for Judge Alger Fee from 1947 to 1949, the U.S. Supreme Court, where the and then was the first female associate law was upheld as constitutional in at King, Miller, Anderson, Nash and 198. In 1917, the U.S. Supreme Court Yerke (now Miller Nash), from 195 again upheld the constitutional- to 197. She formed an all-woman law ity of Oregon’s minimum wage law firm with Gladys Everett and Virginia for women and minors in Stettler v. Renwick in 197. Her 1995 oral history O’Hara (1914). The opinions in these captures her early career as a chemist cases deemed, in part, that because and her decision to pursue the study women were “different” from men, and practice of law. and they did not have the ability to In her interview, Althaus recounts vote to change their conditions, they the difficulty of breaking into a male- were a special class in need of protec- dominated profession. Although a tion. The Supreme Court’s reasoning law firm hired her, the integration changed after ratification of the Nine- of a woman into the office and the teenth Amendment in 192. In Adkins potential reaction of clients proved to v. Children’s Hospital (192), the Court be challenging.

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