By Amy Sheppard • January 13, 2012•Writers in Residence
When the draft notice appeared, confirming her husband's participation in the Great War, Anna Smith wondered how she would support herself while he was gone. They talked about it and agreed that she would find suitable employment to make ends meet while he was away serving the country on the battlefields of Europe.
She found employment at Joseph Radice & Company in Buffalo, New York, working as a waitress. Her contract stipulated that she would work until 10 P.M. each day, but Mr. Radice allowed Anna to work past 10 P.M. if she so desired. She often stayed until at least midnight, finding those were the best hours to augment her income.
Still young at twenty-eight years old, she enjoyed her work, found it less taxing than housework, and did not see it as any threat to her health.
The State of New York viewed the matter differently. On the books was a law that forbid women from working as waitresses in cities of certain sizes between the hours of 10 P.M. and 6 A.M. The purpose of the law was to protect women's health and wellbeing. On November 10, 1917, around 11 P.M., C. William Johnson, Mercantile Inspector, entered the restaurant and observed Anna waiting tables. Johnson confronted Joseph Radice, asking if he knew of the law forbidding women to work as waitresses at such hours of the night. Radice replied that he was not aware of the law and that he did not care.
Joseph Radice, not Anna Smith, was charged with violating the New York statute, the possible fine amounting to $20. He pled not guilty and at trial challenged the constitutionality of the statute limiting the hours a woman like Anna Smith could work. The case, Radice v. New York, worked its way up to the United States Supreme Court.
Just the year before, Justice George Sutherland, wrote the majority opinion in Adkins v. Children's Hospital that determined minimum wage legislation for women was unconstitutional because it violated their right to freedom of contract. He cited the recent amendment to the Constitution that enabled women to vote as justification for recognizing their equal political status to make contracts as men in the country (minimum wage laws for men were also unconstitutional at the time because of freedom of contract).
Justice Sutherland wrote for a unanimous court in Radice v. New York, upholding the statute. Justice Sutherland, the justice who had been pictured as an ardent supporter of the Alice Paul egalitarian approach to women's rights following the Adkins decision, determined that though women were politically equal, a state could promulgate laws that protected them physically. This definitely was not the egalitarian approach advocated by Alice Paul and company. And as the Supreme Court upheld the constitutionality of the law, it overruled the decision that Anna Smith had already made regarding what was in her best interest.
The history of Radice v. New York illustrates several themes in legal history involving women. The most striking one is the discrepancy in ideas of what is best for women as individuals and as a collective whole. Between the two cases, Justice Sutherland seemed to try to strike a balance between egalitarians, those who wanted women to have complete, formal equal rights with men, and protectionists, those who wanted women to be treated as special and protected by the law in a way that men were not.
Perhaps because as a society America has struggled with defining what equality for women means, the Supreme Court had, and continues to have, challenges in addressing the rights of women. Though the standard of review in place during Radice v. New York (during the infamous Lochner Era of the court's history) was replaced by what we call today intermediate scrutiny, the results are largely the same. A compromise between two different views of women in the law: that they are complete equals, or that though equal, they are different, and this difference justifies special legal treatment.
Yet when Anna Smith left her house to wait tables that November evening, it's likely she thought that her actions would not amount to anything more than a paycheck--let alone a Supreme Court case. This is the other fascinating aspect of legal history. Acting as individuals to exercise what they believe are their own rights, individuals over the course of American history have chartered a new way forward. Though the Court came down against her, Anna Smith contributed to this legacy. As law students and lawyers today we must keep this in mind as we strive to recognize the potential behind our own actions and those of the women that we work with.