From False Paternalism to False Equality: Judicial Assaults on Feminist Community, Illinois 1869-1895

This essay will examine the “equal treatment” versus “special treatment” for women issue as it arose in Illinois in the late nineteenth century. In 1869 the Illinois Supreme Court barred Myra Bradwell from the practice of law on the basis that she was a married woman, and in 1870 it reaffirmed its exclusion of women in In re Bradwell, the state decision the United States Supreme Court upheld in Bradwell v. Illinois. This denial of equal treatment to women, especially the concurring opinion by United States Supreme Court Justice Bradley, appears to many to represent paternalism at its worst: the interest that individual, exceptional women might have in practicing law must give way to the community’s interest in maintaining women’s separate sphere of home and family.