The Right to Work & Civil Rights

lesliebarnesUncategorizedLeave a Comment

Civil rights advocates of today can seek guidance from a decision issued 125 years ago.

Antoinette Dakin Leach, challenged the denial of her admission to practice law in 1893 because she was not a voter and won. Judge Hackney wrote for the Indiana Supreme Court that

“(t)here is a higher law in this country, . . . that law which accords to every citizen the natural right to gain a livelihood by intelligence, honesty, and industry in the arts, the sciences, the professions or other vocations.” In re Petition of Leach, 34 N.E. 641, 642 (1893).

Modern day civil rights advocates might take note of the struggles encountered and legal arguments used by advocates for women’s suffrage. What follows is a summary of a compelling and fascinating law review article by Indiana’s first female Judge of the Court of Appeals, Sue Shields, and her first law clerk and law school colleague, Suzanne Buchko. The full article can be found here. Antoinette Dakin Leach: A Woman Before the Bar, Valparaiso University Law Review, vol. 28, number 24 (1994). b

Intersectionality was as relevant in the 1840’s as today. The women’s rights movement grew out of the combined interests women had in the abolition of slavery as well as their own right to own property and vote.  When women were relegated to the sidelines and prohibited from participating in the World’s Anti-Slavery Convention of 1840, two women in attendance determined it was time to create a movement of their own. Elizabeth Cady Stanton and Lucrettia Mott acted upon the idea to create a women’s movement (to fight for emancipation but also the right of women to collect their own salary, own property, sue and be sued in their own right, and yes, to vote).

Hoosier women first addressed the Indiana state legislature in 1846, petitioning for the right to own property and vote. They were widely ridiculed, and their cause defeated.

Women continued to organize and fight for abolition and greater rights for women. But their cause was divided from within. Of the two national organizations, one wanted equality right away and the other organization took an approach of gradual equality.  This split in philosophy divided the resources (talent and community support) in half. Much like the debates today going on within the LGBT organizations and those calling for immigration and racial justice reform and other areas of civil rights. Then there was also division from the abolition groups, many not wanting to join with the women’s organizations for fear of derailing their primary goal and being seen as too radical.

Between 1860-1880, the movement picked up steam. Women-owned publications sprang up around the country, organizations formed across the state, public education of women’s rights issues increased, and more and more women joined the movement and received “training” in political advocacy. Society’s attitudes were slowly becoming more inclusive, more women entered the workforce, joined unions, graduated from college and joined professions. The women’s movement expanded to include foreign-born women, all classes of working women as well as the southern states.

Finally in 1890, the two women’s national organizations joined forces.

This was the time period that shaped the life of Antoinette Dakin Leach and her mother.  Born in 1859, Antionette was raised primarily by her single mother.  She was trained and became a teacher. Before her marriage, she entered into a pre-marital agreement, nearly unheard of for the time. She and her husband-to-be agreed that she could pursue any profession of her choice.

Leach ran a school and became the Court Reporter for Sullivan-Greene County Circuit Court. She enrolled in law school in Tennessee, when her youngest was just two and then continued studying law in Michigan. In 1887, she returned to Sullivan, Indiana and practiced law under a local attorney, who would help her apply for admission to the bar and assist in her appeal when she was denied admission in 1893. The trial judge who denied her admission, was also her employer for whom she modernized the practice of law in his court and the state over by introducing technology. (She introduced typewritten pleadings as opposed to hand-written legal submissions.)

In her admission to practice law, the trial judge found she was well-trained in the law, of good moral character, and supported by local attorneys, but since she wasn’t a voter, he could not issue her license.

He relied upon the 1851 Indiana Constitution, which provided that:

“Every person of good moral character, being a voter, shall be entitled to admission to practice law in all Courts of Justice.” Section 21, Article 7, 1851 Indiana Constitution.

Leach appealed her case to the Indiana Supreme Court and argued that Indiana’s Constitutional provision that permitted voters to the legal profession, merely expanded who could already practice and didn’t limit the profession to only those who qualified as voters.  At the time, and to a great extent yet today, US courts followed British Common law, and England issued licenses to those trained in the law and of good moral character.  She was successful, and the Indiana Supreme Court determined that women had an equal right to practice law as a livelihood as a man.

The Indiana Supreme Court went further and relied upon Article 1, Section 23, which remains unchanged to this day and provides that “the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”

While this case was about the right to work, it’s implications are broader for today’s civil rights debates.

Indiana’s RFRA is unconstitutional because it seeks to elevate those with sincerely held religious beliefs above the law that everyone be treated equally. Both minority groups and those without religious beliefs lose out.

When businesses organize under state law and are open to the public, they must serve all of the public. While we have a few carve out exceptions for private, religious entities, any such entity that takes advantage of government benefits, tax breaks, contracts or grants, cannot be permitted to discriminate against whom they serve, admit, or hire.

Our constitution does not permit the government to be used to discriminate, and those acting on behalf of the government or receiving government benefits cannot be permitted to discriminate, even in the name of religion. The government cannot compel individuals to associate with, marry, or interact with everyone equally in their personal, private life. However, when that individual starts a business or works for a company organized under the laws of our state and receiving government benefits, that individual must treat everyone equally that interacts with the business or organization. To permit otherwise, would be unconstitutional.

Leave a Reply

Your email address will not be published. Required fields are marked *