History of the courts

Articles on Wisconsin legal history

The Wait case and equal rights for women

Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612

In 1919 the 19th Amendment to the U.S. Constitution gave women the right to vote in national elections for the first time. The years after that were a period of anticlimax for the women's movement. The political enthusiasm which led to the 19th Amendment ebbed, and divisions appeared in the movement. Nevertheless, during the early 1920s some little- publicized but vitally important advances in Wisconsin women's rights took place.

After the 19th Amendment was passed, Wisconsin women's rights leaders pressed the Legislature to enact a law implementing their right to vote. The famous author Zona Gale of Portage was a leader in this movement.

In 1921 the Legislature obliged by enacting a women's equal rights law. The law, still in effect today, states: "Women shall have the same rights and privileges under the law as men in the exercise of suffrage ... and in all other respects."

Some women quickly realized that if the law were interpreted literally it could make dramatic changes in women's legal rights other than voting. For example, it could eliminate the limits remaining from the 19th century on women's property rights, civil rights and their role in the family. It remained to be seen whether the courts would interpret it that way.

In 1922, the Supreme Court suggested it would interpret the law liberally, and in the famous case of Wait v. Pierce (1926) it confirmed that fact. Up to the time Wait was decided, the law had barred women from suing their husbands when the husbands injured them -- for example, in an auto accident. By a 4-3 vote, the Court held that the equal rights law ended this rule.

The three dissenters argued the equal rights law should be limited to voting rights. They accused the majority of sweeping away established rules for women without legislative authority. They argued the law was designed "to remove supposed fetters, not to forge new ones," and that the majority was attacking the sanctity of the family.

Justice Marvin Rosenberry, of Wausau, speaking for the majority, bluntly refuted these objections. Rosenberry pointed out that the law's wording was too broad to be limited to voting rights. Therefore, he said, "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 mentions but 'in all other respects.'" Rosenberry was not bothered by this in the least. He concluded:

While 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.

The sweeping language of the Wait case makes 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 statute. It may figure in disputes in Wisconsin women's rights in future years.

Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.

Back to top

Back to articles on Wisconsin legal history