Friday, August 8, 2008

Caplan on The History of Women's Jury Service in Washington

The History of Women's Jury Service in Washington by Aaron H. Caplan, Loyola Law School - Los Angeles, has been posted on SSRN. It appeared in Washington State Bar News (2005). There's the abstract:
From 1883 to 1887, women in the Washington territory served as jurors just as they do today. But unlike today, their presence was a source of great legal and social contention. Critics claimed that allowing women to serve as public decision-makers in the state's courts was a misguided experiment that violated the laws of nature, and would lead to dire consequences for family and society. A backlash followed that removed women from juries.
This article describes the decade-long tug of war between the Washington legislature and the Washington Supreme Court over the related questions of women's right to vote and their right to serve on juries. The ability of women to serve on juries was twice upheld by the Supreme Court in 1884, but it was stricken down in 1887 in a decision that unexpectedly found that the statute granting women the right to vote (one of the prerequisites to jury service) was unlawfully adopted due to a defect in the bill's title. The legislature responded with a new bill to re-enfranchise women in 1888, but this was invalidated later that same year as a violation of the federal Organic Act that outlined the powers of the territorial government.
Upon statehood in 1889, the state's (male) voters were asked to vote separately on whether the new constitution should extend the franchise to women. The measure failed, in part due to the widespread concern that female voters were likely to support alcohol prohibition. The constitution was amended in 1910 to extend the vote to women, ten years before a similar amendment was made to the U.S. constitution.
Suffrage did not immediately translate into equal jury service for Washington women, as various opt-in and opt-out provisions in place during the early twentieth century meant that women were chronically underrepresented on juries. A sex-neutral jury service statute was ultimately adopted in 1967.