the doctrine of propter defectum sexus
Studies in expression. When women are jurors, Charles Dana Gibson 1902
It would perhaps be logical to assume that jury service came along with suffrage, that the Nineteenth Amendment had enrobed women with political rights in addition to the guarantee of suffrage. To the contrary, jury service for the most part fell under state rather than federal jurisdiction, resulting in different treatment in different states.
Under English common law, which was the basis for early American law, women, except in a small category of cases, were demmed unfit to serve on juries under the doctrine of propter defectum sexus, a "defect of sex".
The Supreme Court, in an 1879 decision, confirmed that a state may constitutionally "confine the selection [of jurors] to males. Utah, in 1898, became the first state to deem women qualified for jury duty; but as of 1927 only 19 states allowed women to serve.
Aside from the "defect of sex," women were excluded from juries for a variety of reasons: their primary obligation was to their families and children; they should be shielded from hearing the details of criminal cases, particularly those involving sex offenses; they would be too sympathetic to persons accused of crimes; and keeping male and female jurors together during long trials could be injurious to women.
Political Ad: 1915
The struggle to include women in the jury pool took place state by state.
New York state, where the play 12 Angry Men is set, passed a law in 1937 that permitted, but did not require, women to serve on juries. A woman could be excused from jury duty if she wished solely on account of her sex, a practice that continued in New York through the 1960's.
None other than Ruth Bader Ginsburg served as the attorney representing Marsha Healy in opposing Louisiana's optional jury service for women. This case, Healy v. Edwards, was among the first to oppose previous rulings in other states that maintained the opt-in policy for women rather than automatic registration as they did for men.
Ginsburg expanded the plaintiffs to include three groups: women like Healy whose citizenship was diminished by making citizenship duties optional, women defendants who were denied the right to a jury of their peers by not having women on their jury, and men who had to be called in more often for jury duty because women weren't required to.
Ginsburg argued that "a flavor, a distinct quality is lost if either sex is excluded."
a Responsibility & a Privilege
Equal jury service responsibility came with the U.S. Supreme Court's 1975 decision in Taylor v Louisiana, when the Court held that states must treat men and women in the same way with respect to jury service. The Supreme Court declared that peremptory challenges based on sex violate the Equal Protection Clause of the Fourteenth Amendment.
The year that women, finally, were given the universal right to serve as a juror.
Parker Players is presenting the play 12 Angry Men in its original form. It is a peek into history, with all of its good, bad and nuanced realities. Women, in New York, had to wait until the late 1960's to be automatically registered to serve on a jury.