As America marks the 100th anniversary of the ratification of the 19th Amendment that guaranteed women the right to vote– in practice it was primarily reserved for white women, we reflect on gender equitable principles essential to freedom and democracy.
Coverture is a concept America had inherited from the English common law. It meant that a woman was legally considered the chattel of her husband. Literally, his possession. Any property she might hold before her marriage became the property of her husband on her wedding day. She had no legal right to appear in court, to sign contracts or to do business.
Sir William Blackstone (d. 1780), author of the influential Commentaries on the Laws of England, explained that a woman’s existence was completely subsumed by her husband:
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything; and is therefore called in our law . . . said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. [. . . ] 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.”
In the 1840s in some states — but not all of them — which was about 1200 years after the Sharia and the Quran granted women separate legal status with all the rights therefrom — American woman would finally acquire a legal status within marriage, gain the right to make contracts, to retain personal property, to be parties to lawsuits and contracts and execute wills on their own behalf. But these new rights did not include a woman’s right to control her own earnings.
In 1876, the United States Supreme Court in Seitz v Mitchell, 94 U.S. 580 (1876) concluded that a statute that guaranteed married women the right to property they held before or acquired during marriage, did not extend to woman’s earnings:
“[N]owhere, so far as we are informed, has it been judged that a woman’s earnings or the product of them, made while she is living with her husband and engaged in no separate business, are not the property of the husband . . . . Certainly the acts of Congress respecting the right of married women in this District do not assure such property to the wife.” explained the Supreme Court.” Id. at 584
Not surprising, there was a legal requirement that a woman replace her family name with that of the family name of the person she married. Muslim women always kept their maiden name as a matter of law. In Chapman v. Phoenix National Bank of the City of New York, 40 Sickels 437 (1881), the Court of Appeals of New York explained:
“For several centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband’s surname. That becomes her legal name, and she ceases to be known by her maiden name. By that name she must sue and be sued, make and take grants and execute all legal documents. Her maiden surname is absolutely lost, and she ceases to be known thereby.” Id. at 449.
Even as late as 1945, in Rago v. Lipsky, 327 Ill.App. 63, the Illinois Appellate Court echoed the same consensus:
“Notwithstanding petitioner’s contention to the contrary, it is well settled by common-law principles and immemorial custom that a woman upon marriage abandons her maiden name and takes the husband’s surname, with which is used her own given name.” Id. at 67.
In Alabama, the law required a married woman to use her husband’s name to apply for a drivers’ license. In 1971, the United States Supreme Court affirmed without an opinion this Alabama requirement. Forbush v. Wallace, 341 F.Supp. 217 (M.D.Ala.1971), aff’d without opinion, 405 U.S. 970 (1971). Utah had a similar law. In an unpublished 1976 decision, the United States Supreme Court affirmed a Utah court decision that denied a female plaintiff the right to use her maiden name on her driver’s license:
“As already discussed, Utah common law concerning names was displaced by statutory law, and the Plaintiff can cite no Utah statute creating the right to use any name on a Utah driver’s license. Thus, Plaintiff fails in her claim that she has a property entitlement in Utah to use her maiden name on her driver’s license.” Jorgensen v. Larsen, 930 F.2d 922 (10th Cir.) (Unpublished)
This was not an aberration. According to the Sixth Circuit in 1976, this was the law of the land and upheld a similar Kentucky regulation that required a woman to use her husband’s name to apply for a driver’s license. Forbush in Whitlow v. Hodges, 539 F.2d 582 (6th Cir.1976).
Logically flowing from this Supreme Court precedent, a name change of a married woman required the consent of her husband. Prior to 1981 in Iowa, for example, Iowa law required: “If the petitioner for a name change is married the spouse must join the petition or file written consent with the petition.”
On the 100th Anniversary of the 19th Amendment, I also reflect about gender equity in the Islamic tradition. Many readers of this article will be surprised to learn that Muslim Women in the 7th Century had more rights than did American women in the early 20th Century. When American law considered a woman the chattel of her husband, Muslim women had independent legal status, legal capacity to contract, the right to work, inherit and bequeath property. Muslim women cannot be disinherited by will; they owned, managed, and disposed of property. They were entitled to sexual pleasure and eligible to be religious scholars; and some jurists said a woman could be a judge.
Despite this rich and substantial gender equity tradition in Islam, Muslim women today suffer discrimination, abuse, and marginalization in Muslim communities. Muslim women do not need to look outside of their tradition for authority and inspiration to develop an Islamic jurisprudence of female empowerment, independence and equality. All the building blocks are there to capture the divine message: “It is He Who brought you forth from one soul, lodged in the womb, or laid to rest in the tomb.” – Quran 6:98
Abed Awad is a New Jersey attorney, a national expert in Islamic law and an adjunct professor at Rutgers Law School.