State Bar of Wisconsin

The History of Wisconsin's Women's Rights Law, Part 2:
Wisconsin Women and the Law Since 1920

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Women at the Bar in the 20th Century

Huge technological and economic changes in the last half of the century, combined with the ascendance of individual rights in legal and social thought in the 1960s and 1970s, brought new legal changes for women that were at least as far-reaching as the changes before 1920.

by Joseph A. Ranney

In 1920 Wisconsin feminists must have viewed their situation with mixed feelings. They had made notable gains during the previous 50 years, but Wisconsin had lagged behind and was far from accepting women as the legal equals of men. It was unclear whether legal gains for women would continue.

Changes in women's rights prior to 1920 were driven partly by idealism but also by economics to a larger extent than is commonly realized. This continued to be the case after 1920. Huge technological and economic changes in the last half of the century, combined with the ascendance of individual rights in legal and social thought in the 1960s and 1970s, brought new legal changes for women that were at least as far-reaching as the changes before 1920.

The first wave of change, 1921-1926

The Wisconsin Equal Rights Law and the Wait case. Politically, the years after 1920 were a period of anticlimax for the Wisconsin women's movement. In 1920 the groups that had led the Wisconsin suffrage movement ceased large-scale political activity. A division developed between "equal rights" feminists, who began pressing for an equal rights amendment to the U.S. Constitution as early as 1923, and "special rights" feminists who wanted to preserve the special identity and many of the special privileges of women in society.¹

Nevertheless, during the early 1920s some little-publicized but significant advances in Wisconsin women's legal rights took place. In 1921 the Legislature passed a women's equal rights law. The ostensible purpose of the law was to implement the federal suffrage amendment in Wisconsin, but in fact the law went well beyond women's suffrage:

"Women shall have the same rights and privileges under the law as men in the exercise of suffrage, freedom of contract, choice of residence for voting purposes, jury service, holding office, holding and conveying property, care and custody of children, and in all other respects."²

Some feminists quickly realized that if the equal rights law were literally construed, it could make dramatic changes in women's property rights, civil rights and their role in the family. It remained to be seen whether the courts would construe it in this manner or whether they would try to limit it to the confines of the suffrage amendment.

In First Wisconsin National Bank v. Jahn (1922) the Wisconsin Supreme Court gave an early indication that it would follow the path of liberal construction. In Jahn the court explicitly held that the equal rights law had abolished all remaining common-law limits on married women's property rights and that married women now were as free to enter into contracts as men. The court also stated that the law should be construed liberally to achieve this end.³

Four years later the court cemented its position in Wait v. Pierce (1926). In Wait the court on a 4-3 vote reaffirmed its broad interpretation of the equal rights law, in this case holding that the new law overturned the common-law rule barring wives from suing their husbands in tort. Justice Franz Eschweiler, speaking for the three dissenters, argued that the equal rights law should not be interpreted to overturn limits on married women's rights that continued to exist in other statutes. Eschweiler accused the majority of completely sweeping away the common law of married women's rights without legislative authority. Eschweiler protested that the law was designed "to remove supposed fetters, not to forge new ones," and he accused the majority of striking a blow at the sanctity of family.⁴

Justice Marvin Rosenberry, speaking for the majority, refuted Eschweiler's objections with characteristic bluntness. Rosenberry concluded that the law's wording was too broad to be limited to suffrage and that therefore "it seems too clear for argument that [the law] ... was designed to place [married women] on a basis of equality before the law not only in the particulars mentioned but 'in all other respects.'" Rosenberry was not bothered at all by the sweep of the law:

"[T]he family relation is not disturbed by the enactment of statutes conferring rights upon married women. It is only when the ideal family relation has for some reason been disrupted that rights under the statute are asserted. ... [W]hile there are many persons, particularly those of the older generation, who are genuinely alarmed at the statutory modification of the family status as it existed at common law, there are an equal if not a greater number who see in the emancipation of married women a necessary genuine social advance. We are not required to determine which view is correct. It is no doubt within the power of the legislature [to enact the law]... ."⁵

The dissenters in Wait and their views did not go quietly. In Fontaine v. Fontaine (1931) the court conceded that the Wait rule "is probably against the weight of authority," but it noted that the Legislature had not overturned Wait and accordingly it declined to do so.⁶ The sweeping terms of the Wait decision make it probably the most important women's rights case ever decided in Wisconsin. The equal rights law has been little used since 1921, but it remains an important if dormant statute, and it may figure in disputes over Wisconsin women's rights in future decades.

Women in the 20th century workplace

The uneasy balance between protection and paternalism. At the beginning of the 20th century, as increasing numbers of Wisconsin women went to work in factories, a movement arose to make their working conditions more tolerable. The movement was driven by a genuine concern for women's health and morale but also by the Victorian attitude toward women, partly idealistic and partly patronizing, which fueled many of the changes in 19th century women's law and lasted well into the 20th century. As the new century progressed, women became increasingly divided between a desire to preserve workplace protection and resentment over the paternalism that motivated that protection but held back advances in other areas.

In 1867 Wisconsin became the first state to enact legislation limiting women's hours of work.⁷ The 1867 law established an eight-hour workday for women, but it did not prohibit them from working longer hours voluntarily and it imposed only a small fine on violators. With one minor exception no additional women's workplace laws were enacted until the end of the first Progressive era in Wisconsin.⁸ In 1911 the Legislature enacted a 10-hour workday and limited night work for women; in the same year it also created the Industrial Commission, which ensured that the new women's workplace law would be enforced more vigorously than was the 1867 law. The 1913 Legislature broadly prohibited women from working for any periods of time "as shall be dangerous or prejudicial to [their] life, health, safety or welfare," and enacted the state's first minimum wage statute requiring that women be paid a "living" wage.⁹

In State v. Lange Canning Co. (1916) the Wisconsin Supreme Court upheld the 1913 women's hours law and indicated that unlike the U.S. Supreme Court, it was not sympathetic to substantive due process and believed the Legislature had a broad right to regulate workplace conditions.¹⁰ However, in Adkins v. Children's Hospital (1923), the U.S. Supreme Court invalidated a District of Columbia women's minimum wage law on the ground that it did not promote women's health and welfare and interfered with employers' and employees' freedom of contract. The following year a three-judge federal panel reluctantly followed Adkins and struck down the Wisconsin women's minimum wage law.¹¹ The Legislature promptly passed a new law providing that women could not be paid "oppressive wages." Despite the Industrial Commission's concern that the new law was equally vulnerable to a court challenge, the law was never challenged, and during the New Deal its preservation was assured when the U.S. Supreme Court reversed its decision in Adkins.¹²

The Wisconsin Supreme Court was reluctant to strike down governmental regulation of women's employment even where it limited opportunities for women. Teacher employment provides the most prominent example. Prior to 1937 Wisconsin school boards routinely refused to hire married women as teachers and required single women teachers to sign contracts agreeing not to continue teaching after marriage. In Ansorge v. City of Green Bay (1929) the Wisconsin Supreme Court held that the no-marriage clauses did not violate the 1921 equal rights law: that law gave married women equal rights to contract, but it did not limit the types of contracts they could make. Interestingly, the plaintiff in Ansorge raised no constitutional challenge to the no-marriage clauses.¹³

In 1937 the Legislature enacted a Teachers Tenure Law that provided that nonprobationary public school teachers could be discharged only for cause. In State ex rel. Schmidtkunz v. Webb (1939) the court held that under the new law, no-marriage clauses were no longer permitted and teachers could be discharged only for reasons related to efficiency or good behavior. Again, however, the constitutional implications of prohibiting married women from teaching were not raised or discussed.¹⁴ A quarter of a century after Schmidtkunz, the court confirmed its reluctance to overturn laws governing the employment of women when it upheld a Milwaukee ordinance prohibiting female tavern employees from tending bar or drinking with male patrons. The court rejected challenges to the ordinance under both the 1921 equal rights law and equal protection, and chose instead to defer to the broad power of government to regulate alcohol.¹⁵

The second wave of change, 1965-1986

ERA and marital property reform. In the early 1960s the issue of women's place in the American legal system began to receive renewed attention. Many states created commissions on the status of women: Wisconsin was one of the first to do so, in 1964. When the federal Civil Rights Act of 1964 was passed, feminists and their supporters argued that its protection should be extended to women as well as blacks. Congress provided some protection to women in Title VII of the Act, but the tenor of the debate over the 1964 Act led many feminists to conclude that only a national equal rights amendment (ERA) would fully protect them.¹⁶

The ERA campaign met with a mixed reception both nationally and in Wisconsin. Congress passed the ERA in 1972, and the Wisconsin Legislature ratified it swiftly and with little debate. But ERA supporters could persuade only 35 states to ratify the amendment; 38 states were necessary. The Wisconsin Legislature also approved an equal rights amendment to the Wisconsin Constitution, which was submitted to the voters in April 1973; however, it was rejected by a margin of 53 to 47 percent.¹⁷

The defeat of the Wisconsin ERA came as a surprise to Wisconsin feminists: the amendment had received bipartisan support and most observers had expected it to pass. However, opponents of the Wisconsin ERA included not only men but also many women who believed it denigrated the importance of housewives and feared that it would harm the family and would deprive women of many of the privileges that they enjoyed under the law, such as the right to support from their husbands and exemption from military service. The Wisconsin ERA was broader than the national ERA in that it prohibited sex discrimination in all aspects of life, not just by government officials. Some opponents felt that discrimination should be corrected one area at a time, through the enactment of statutes rather than a broad constitutional amendment.¹⁸

Despite this setback, the 1970s and early 1980s witnessed the most dramatic advances in women's rights since the suffrage amendment and the 1921 equal rights law. In 1975, chiefly at the urging of Wisconsin Assembly member Mary Lou Munts of Madison, the Legislature passed a bill eliminating numerous sex-based references in the state statutes. Among other things the law extended Wisconsin's maximum hours and minimum wage laws to apply to men as well as women. Employment discrimination based on sex was prohibited, and the portion of the 1921 equal rights law that preserved to women "the special protection and privileges which they now enjoy for the general welfare" was repealed. The Legislature declared broadly that it intended Wisconsin law "to reflect the equal status before the law of men and women."¹⁹

A systematic reexamination of women's property rights also began in the 1970s. Various legal scholars, including Prof. June Miller Weisberger of the U.W. Law School, argued that the community property system, which prevailed in eight southern and western states, should be adopted nationwide. Community property gave each spouse control over property that she or he brought to the marriage and gave the spouses equal control over property acquired during the marriage. Weisberger and other reformers argued that community property reflected the nature of marriage as a partnership and the value of domestic and income-producing work that married women contributed to their households better than did the common law system, which prevailed in most states including Wisconsin. In 1983 the Conference of Commissioners of Uniform State Laws published a Uniform Marital Property Act, which adopted a community property system. It recommended the Act for adoption nationwide.²⁰

The reform movement also was active in Wisconsin. It gradually acquired a bipartisan group of supporters in the Legislature, led by Rep. Munts and state senators Donald Hanaway of DePere and Lynn Adelman of New Berlin. Community property bills were introduced in the Legislature in 1979 and 1981, but failed. Opponents of community property, most notably the State Bar of Wisconsin, did not challenge the need for laws giving women equal property rights. Rather, they argued that Wisconsin's common-law property rights system had proven its adaptability to changing concepts of women's rights over the years and that conversion to an entirely new system was unnecessary and socially disruptive. They proposed a "common law alternatives" bill, which would allow married couples to opt for either community property or the common-law system.²¹

The reformers replied that the common-law system was not as flexible as the role of women in modern society required. They pointed out that under existing law there was a presumption in favor of separate property. Specific action was required to accomplish sharing. Women had no legal right to share in their husbands' income and property titled in the husband's name except by court order pursuant to a divorce or other special circumstances. Community property would give women easier access to marital income, to marital property and also to credit based on shared income and assets. Many community property supporters, most notably Sen. Hanaway, emphasized that the new system would have important symbolic as well as practical value: it would show that the state was committed to equal rights for women in practice as well as in theory.²²

In 1983 community property bills were introduced again in the Legislature and this time the reformers prevailed. The Wisconsin Marital Property Act (WMPA) was passed in March 1984 and took effect at the beginning of 1986.²³ The WMPA closely followed the Uniform Marital Property Act, as Wisconsin became the first (and so far the only) state to adopt a version of the Uniform Act. Like the Uniform Act, WMPA created a presumption that all income and property of spouses is marital and subject to equal sharing. WMPA went beyond the Uniform Act in some respects, most notably in providing assurances that married women who do not work outside the home will be able to use marital property and income to get easier access to credit.²⁴

20th century family law

The decline and fall of fault-based divorce. Through most of the 20th century, the gap between the Wisconsin divorce statutes and the reality of divorce practice widened steadily. Both before and after 1900 most Wisconsinites regarded divorce as a necessary evil, but over the course of the 20th century the necessity of divorce was increasingly stressed and the public's moral qualms about divorce slowly faded. Wisconsin's divorce rate increased throughout most of the century, with sharp increases immediately after World War II and again during the 1970s.²⁵ Wisconsin's judges accommodated the pressure for more divorces mainly by construing the "cruel and inhuman treatment" ground for divorce very liberally.

Cruelty was the most popular ground for divorce in the 19th century, and it became ever more popular in the 20th century. By the 1930s more than 80 percent of all divorce judgments were based on cruelty.²⁶ Prof. Nathan Feinsinger of the U.W. Law School, investigating the state's divorce system in the early 1930s, found that most judges believed that when a marriage deteriorated to the point where a divorce suit was filed, the courts could do little to save the marriage. If they refused to grant divorces because the evidence of cruelty was thin or even fictitious, they would only encourage unhappy couples to commit real cruelty and violence. Therefore, "the efforts of the court [were] bent more in the direction of relaxing the law to aid the ... parties in accomplishing the desired objective than in the direction of strict application of relevant legal rules," with cruelty serving as "a catch-all for widely varied types of human behavior."²⁷

The supreme court condoned this trend but did not lead it. In 1916 the court retreated from the 19th century rule that actual or threatened physical harm must be shown in order to establish cruelty, and held that conduct causing mental suffering, serious stress or a threat to health was sufficient.²⁸ The court also began to focus on the effect rather than the nature of the conduct in determining whether it was cruel.²⁹

The Legislature did not move as quickly as the courts. Even though most Wisconsin trial courts consistently "winked" at collusive divorces, in 1909 the Legislature created the post of Divorce Counsel in each court. The divorce counsel in effect served as a district attorney for family law, to try to prevent collusion. Due to inadequate funding and lack of cooperation from trial judges, the law was never effective.³⁰

The concept of no-fault divorce was first developed and advocated in the late 1940s. Despite the fact that many judges had effectively transmuted divorces for cruelty into no-fault divorce and despite the increasing divorce rate, many Wisconsinites believed that no-fault divorce was "anti-family" and would undermine the institution of marriage. The Catholic Church, working with the Council for Home and Family and the St. Thomas More Lawyers Society, led the opposition to no-fault divorce. The Legislature first seriously considered no-fault divorce in 1957, but it did not come close to passage. In 1967 a bill was introduced adding incompatibility as a ground for divorce, but it was defeated.³¹

In the 1970s the balance of public opinion shifted decisively in favor of change. The National Conference of Commissioners on Uniform State Laws enacted a model no-fault divorce law in 1970, and many in Wisconsin felt that the state would fall behind the times if it did not follow the commissioners' lead. In 1971 the Legislature reduced the waiting period for divorce based on voluntary separation from five years to one year, and this ground for divorce swiftly gained popularity.³²

In 1975 several no-fault bills were introduced. Interestingly, the Catholic Church and other traditional opponents of no-fault divorce were much more muted than they had been in previous years. The bills were defeated in part because feminists felt the bills did not go far enough. They argued that any system should include objective standards that judges must follow in dividing property and awarding support and also strong support enforcement and collection provisions. A debate also took place between Catholic groups who wanted reconciliation counseling to be made part of the new system, and feminists who wanted the law to stress conciliation (that is, counseling to help the parties adjust to divorce).³³

Joseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the author of several articles on legal and historical topics.

In 1977 the Legislature finally enacted a no-fault system. The new law made irretrievable breakdown the sole ground for divorce in Wisconsin. It established largely objective standards for child support and marital property division, and partly objective standards for spousal support. The law made concessions to traditionalists by emphasizing in its preamble that it was "not intended to make ... divorce ... easier to obtain," and by requiring reconciliation counseling.³⁴

Conclusion

Today it is as difficult to predict the future course of Wisconsin women's rights as it was in 1920. Drastic changes in household economics have taken place since the mid-1960s. The two-earner household has become increasingly common. Single-parent and other nontra-ditional households continue to increase, and traditional barriers to women in the workplace and the professions continue to erode. The fear that completely equal rights will obliterate the differences between the sexes remains a powerful force in Wisconsin as elsewhere. The only safe prediction is that idealism and economics both will continue to play key roles in shaping women's legal rights.

Endnotes

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¹ Hoff, Law, Gender and Injustice: A Legal History of U.S. Women (New York, 1991), 108-18; G. McBride, On Wisconsin Women (Madison, 1993), 294-98.

² L. 1921, c. 529. The law is codified today as section 766.97 of the Wisconsin Statutes.

³ 179 Wis. 117, 125, 190 N.W. 822 (1922).

⁴ 191 Wis. 202, 220-24, 209 N.W. 475 (1926). In addition to Justice Eschweiler, Chief Justice Aad Vinje and Justice Christian Doerfler also dissented.

⁵ 191 Wis. at 210-12. Justices Walter Owen, Charles Crownhart and E. Ray Stevens joined Rosenberry in the majority.

⁶ 205 Wis. 570, 238 N.W. 410 (1931). But see Ansorge v. City of Green Bay (1929), infra, in which the court held that the equal rights law did not prohibit school districts from refusing to hire married women as teachers.

⁷ L. 1867, c. 83.

⁸ In 1899 the Legislature required businesses to provide "suitable seats" for women. L. 1899, c. 77.

⁹ L. 1911, c. 548; L. 1913, cc. 381, 466, 712. See generally A. Altmeyer, The Industrial Commission of Wisconsin (Madison, 1932), 9-12, 181-85.

¹⁰ 164 Wis. 228, 157 N.W. 777 (1916).

¹¹ 261 U.S. 525 (1923); Folding Furniture Works Inc. v. Industrial Comm'n, 300 F. 991 (W.D. Wis. 1924).

¹² L. 1925, c. 176; West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

¹³ 198 Wis. 320, 224 N.W. 119 (1929).

¹⁴ L. 1937, c. 374; 230 Wis. 390, 284 N.W. 6 (1939).

¹⁵ City of Milwaukee v. Artis, 18 Wis. 2d 599, 119 N.W.2d 442 (1963).

¹⁶ 78 Stat. 255 (1964); see 42 U.S.C. § 2000e-2 (sex-based employment discrimination prohibited); M.F. Berry, Why ERA Failed (Bloomington, Ind., 1986), 57-70. The proposed Equal Rights Amendment provided that "equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."

¹⁷ 1971 J. Res. 44; 1973 J. Res. 5. The vote on the amendment was 447,240 for and 520,936 against.

¹⁸ See Milwaukee Journal, April 2, 5, 1973; Wisconsin State Journal, April 1, 1973; Hoff, Law, Gender and Injustice, 324-30.

¹⁹ L. 1975, c. 94, §§ 48, 53, 60, 73, 90. See also L. 1975, c. 256 (amending the public accommodations law to prohibit price discrimination based on sex).

²⁰ West's Uniform Laws Annotated (St. Paul, Minn., 1987), vol. 9A, 97.

²¹ State Bar of Wisconsin, "The New Marital Property Law," Supplement to Milwaukee Journal, Jan. 12, 1986 (hereinafter "State Bar Supplement"); Legislative Reference Bureau Informational Bulletin 84-1 (April 1984) (hereinafter "LRB Bulletin 84-1"), 1; Weisberger, The Wisconsin Marital Property Act: Highlights of the Wisconsin Experience, 13 Comm. Prop. L. J. 1, 11-13 (July 1986).

²² State Bar Supplement; Hanaway, "An Overview of Wisconsin's Marital Property Reform," in Legislative Reference Bureau Information Bulletin 84-1B-1 (May 1984).

²³ 1983 Act 200; Wis. Stat. Ch. 766.

²⁴ Wis. Stat. § 766.56.

²⁵ The divorce rate increased from 0.5 per 1,000 people in 1910 to 1.2 in 1940 and 2.2 in 1945. It receded to 0.9 in 1960 but then jumped to 2.0 in 1970, and peaked at 3.9 in 1981. It was 3.6 in 1990. Wisconsin 1993-94 Blue Book (Madison, 1993), 784.

²⁶ M.A. Stamp, "Wisconsin's Marriage and Divorce Laws: A Historical Perspective" (LL.M. thesis, University of Wisconsin, 1982), 87.

²⁷ Feinsinger, Observations on Judicial Administration of Divorce Law in Wisconsin, 8 Wis. L. Rev. 27, 30-32 (1932).

²⁸ Hiecke v. Hiecke, 163 Wis. 171, 177, 157 N.W. 747 (1916), and Banks v. Banks, 162 Wis. 87, 155 N.W. 916 (1916). The leading cases for the old rule were Johnson v. Johnson, 4 Wis. 154 (1855), and Beyer v. Beyer, 50 Wis. 254, 6 N.W. 807 (1880).

²⁹ Bird v. Bird, 171 Wis. 219, 177 N.W. 4 (1920).

³⁰ L. 1909, c. 323. In Hopkins v. Hopkins, 39 Wis. 167 (1876), the supreme court had held that collusive divorces constituted a fraud upon the court.

³¹ Stamp, "Wisconsin's Marriage and Divorce Laws: A Historical Perspective," 118-19.

³² West's Uniform Laws Annotated, vol. 9A, 147; Stamp, "Wisconsin Marriage and Divorce Laws: A Historical Perspective," 120-22; L. 1971, c. 220.

³³ Stamp, "Wisconsin's Marriage and Divorce Laws: A Historical Perspective," 122-23.

³⁴ L. 1977, c. 105. The counseling requirement was repealed in 1987, although the law still provides facilities for voluntary counseling. 1987 Act 355, § 15.

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