The passage of the married women's property acts in the United States in the nineteenth and early twentieth centuries is often attributed to economic downturns and a heightened desire during such periods to protect family property from husbands’ debts (Basch Reference Basch1982: ch. 4; Chused Reference Chused1983: 1400–4; Hoff Reference Hoff1991; Lebsock Reference Lebsock1977; Rabkin Reference Rabkin1980; Warbasse Reference Warbasse1987: ch. 5). By granting married women the legal power to own and control property separately from husbands, a segment of the household wealth could be shielded from potentially ravaging and volatile economic conditions. Some scholars have added to this explanation by pointing to women's growing role in the economy. As women gained in education and became business owners and professionals, lawmakers were willing to change property laws to achieve legal clarity regarding women's standing in economic transactions, particularly when economic difficulties strained debtor-creditor relations (Chused Reference Chused1983; Cole Reference Cole1990; Geddes and Lueck Reference Geddes and Lueck2002; McDevitt Reference McDevitt2010). While widely accepted among scholars, these economically focused explanations of the origins of the married women's property acts, we argue, are only a partial story. Women's activism—often the very beginning stages of the women's movement in many states—also played a pivotal role in the enactment of these laws. Few scholars have considered women's collective agency and its influence on changing married women's legal relationship to property, and in fact, the claim persists in historical accounts that women's collective influence played little or no role in the passage of these laws (e.g., Geddes and Lueck Reference Geddes and Lueck2002: 1087; Hoff Reference Hoff1991: 121; Thurman Reference Thurman1966: 7, 30).
In this paper, we add to the economic explanation by bringing in feminist mobilization as an important, additional influence in the enactment of the married women's property acts.Footnote 1 Our approach echoes scholarship in the sociological study of social movements that gives agency to collective actors in winning political reforms (see, e.g., McCammon Reference McCammon2012). Women's efforts to convince lawmakers to give women greater marital economic rights played a significant role in the timing of many of these legal changes. And importantly, we argue that the success of these early efforts by women can be explained by the fact that women's agitation for property reforms often took place as women simultaneously demanded additional rights, often voting rights. That is, married women's property acts were passed often when woman suffrage or other far-reaching reforms were also demanded. Our investigation shows that as women mobilized for property rights alongside voting rights or, in one case, alongside an equal rights amendment, a radical demand effect occurred (Haines Reference Haines1984). That is, when lawmakers confronted what were deemed moderate and radical demands simultaneously, political leaders were willing to grant the more moderate demand—in this case, property reforms—in order to steer activists away from their more radical aims.
In the following text we elaborate our argument of a radical demand effect and explore the events leading to passage of married women's property acts in five states (California, Illinois, New York, Tennessee, and Texas) to reveal a common pattern of lawmaker acquiescence to women's demand for passage of these laws. We show that lawmakers responded to women's agitation for property rights in a context in which a demand deemed more radical than property rights posed an important threat to lawmakers. The histories show that feminist activists were active agents in this process. Particularly, they were able to influence lawmaker understandings of the married women's property acts through the use of hybrid framing (Maney et al. Reference Maney, Woehrle and Coy2005). Activists deployed frames that worked to define property rights for married women as a moderate demand, one less radical than more far-reaching reforms such as woman suffrage. We readily acknowledge that not all states followed such a path to passage of property reforms. Some Deep South states, for instance, provide important exceptions. But we argue that women's feminist activism, hybrid framing, and lawmaker response to such activism produced a radical demand effect, and this played an important and overlooked role in passage of these political reforms.
A Positive Radical Demand Effect
In 1984 Herbert Haines introduced the term “positive radical flank effect” to describe the beneficial influence that a radical branch of a social movement can have on more moderate groups within the same movement. Haines investigated the US civil rights movement during the 1960s and noted that a rise in black radicalism among civil rights activists, particularly among black power movement activists, led to increases in funding from outside sources, but did so particularly for more moderate groups within the movement, for instance, for the National Association for the Advancement of Colored People. In short, radical activism in one branch of the movement benefitted the more moderate wing of the overall mobilization. Haines called this a “positive radical flank effect,” explaining that a radical flank can “provide a militant foil against which moderate strategies and demands are redefined and normalized—in other words, treated as ‘reasonable’” (Reference Haines1984: 32). Haines also theorized a “negative radical flank effect,” with the opposite possibility, that the radical arm of a movement could alienate followers and cause a decline in movement support, including for more moderate groups. While few have investigated radical flanks effects, a handful of studies confirm Haines's theorizing of the positive effect (e.g., Anner Reference Anner2009).
The mechanism underlying a radical flank effect resides in the significant threat to elites that radical groups can pose. Gamson (Reference Gamson1975: 47) writes that radicals tend to seek fundamental changes in critical structures, procedures, or elite personnel. When a challenging group's goals define far-reaching changes with the possibility of displacing elites from their positions of status and power or fundamentally altering the ways in which political elites govern, a discernible threat for power holders exists. The radical flank effect posits that elites will respond by criticizing and rejecting radical demands and instead will work to guide challengers into less threatening channels by responding positively to what are perceived to be more moderate demands, demands that do not pose the same threat to elite power. Tarrow (Reference Tarrow1998: 149) calls this “selective facilitation” and states that “by negotiating with some elements among a spectrum of contenders, governments encourage moderation and split off the moderates from their radical allies.”
While Haines (Reference Haines1984) assumes that a positive radical flank effect occurs only when a movement contains clear factions, that is, when both radical and moderate flanks coexist, we argue that a similar effect can occur for less divided movements and even in circumstances where only one activist group pursues change. We instead use the term “radical demand effect,” and argue that a radical demand effect can occur when a challenger group espouses more than one goal and where one goal is deemed moderate while another is labeled radical. A radical demand effect can transpire, then, when political elites reject demands perceived as radical, that is, demands deemed threatening to power holders, but are willing to accommodate claims perceived as more moderate.
Moreover, in an additional refinement of Haines's radical flank effect, we explicitly acknowledge that activist demands are not necessarily understood a priori as radical or moderate by political leaders. Rather, as the struggles for the married women's property acts reveal, such understandings emerge over time as they are collectively and contentiously constructed, typically through framing efforts in which both activists and political elites define demands along ideological lines, often as either radical and threatening (meaning making typically undertaken by political elites) or as moderate and worthy of accommodation (often a framing goal of the activists, but one in which some political elites can participate as well). Such definitional, ideational work is often at the heart of the discursive struggle over winning legislative changes.
Our approach thus combines a radical demand effect with a framing perspective (Snow et al. Reference Snow, Rochford, Worden and Benford1986). In many of the states we examine, feminist activists framed their property demands in ways that moderated the demands. They did this by deploying hybrid frames that combined their demand for marital property rights with beliefs already resonant in the broader cultural milieu (Maney et al. Reference Maney, Woehrle and Coy2005). We find, for instance, that activists rarely agitated simply for women's property “rights,” but rather articulated linkages between their demand for property reforms with dominant beliefs in the broader culture, such as a desire for a legal culture distinct from that of British conceptions of coverture in the first half of the nineteenth century, and later, notions of traditional gender relations in which women needed legal protection from economic volatility and imprudent husbands. Hybrid frames, akin to Snow et al.'s (Reference Snow, Rochford, Worden and Benford1986) notion of frame bridging, blend activist goals with rationales constructed from generalized beliefs. We use the label hybrid framing rather than frame bridging to highlight the blended nature of these frames.
In the end, the efforts of early feminists, with their hybrid framing, and the radical demand effect—while lawmakers meanwhile labeled suffrage and equal legal rights as more threatening bids—all worked together to produce lawmaker support for the married women's property acts. In short, this confluence of developments produced a political opportunity for the passage of the property reforms. Thus our third refinement of Haines's earlier concept is to link a radical demand effect to political opportunity theory (McAdam Reference McAdam, McAdam, McCarthy and Zald1996). We move the concept of a radical demand effect into the political arena to explain specifically lawmaker responses to activists. We illustrate how a demand framed as a moderate proposal alongside another demand deemed more threatening provides a radical foil, and because of this contrast, broader political support—that is, a political opportunity—for the more moderate aim takes hold. As our examination of the historical record in the following text reveals, these circumstances proved a successful combination that allowed women, as active political agents, to win marital property reforms.
Married Women's Property Acts
Prior to the enactment of the married women's property laws in the United States, married women were governed by a legal system of coverture derived from English common law. William Blackstone (Reference Blackstone1765: 430), an eighteenth-century British legal commentator and proponent of coverture, states that this system presumed a woman, upon marriage, to have few legal rights. Her rights were “covered” by her husband who, in principle, represented her interests in both political and economic domains. As Blackstone describes, “[b]y marriage, the husband and wife are one person in law” and “the very being or legal existence of the woman is suspended.” Early women's rights leader, Elizabeth Cady Stanton, wrote critically of this legal system in the 1848 Seneca Falls Declaration of Sentiments that man “has made her, if married, in the eye of the law, civilly dead” (Stanton et al. Reference Stanton, Anthony and Gage1881: 70). Married women could not own property, neither real estate nor personal property (including the very clothes they wore); had no control over their earnings; and had little legal economic standing in the marketplace, meaning they could not enter into contracts and had no right to sue to redress economic grievances. Instead, any property or wealth acquired before or during marriage, through inheritance, gift, purchase, or earned income, became a husband's possession, to legally own and manage. In a nation in which citizenship and particularly voting rights were intimately tied to property ownership (Keyssar Reference Keyssar2000), this presented a significant challenge for those valuing greater equality for women. Not surprisingly, the earliest feminists chafed under this legal restraint.
State legislatures are responsible for defining marital statutory property rights,Footnote 2 and the earliest separate-property act for married women was passed in 1848 in New York, granting married women the legal right to own and control separate property (Geddes et al. Reference Geddes, Lueck and Tennyson2009a).Footnote 3 Earlier laws with weaker provisions were set in place in some states. For instance, Arkansas in 1835 and Mississippi in 1839 enacted laws protecting married women's property from their husbands’ debts but did not give married women full legal rights to control and manage their property (Broussard Reference Broussard, Payne, Swain, Spruill and Eagles2010; Dougan Reference Dougan1987). Other early laws granted married women property rights but only when abandoned by husbands (Warbasse Reference Warbasse1987; Zeigler Reference Zeigler1996). Table 1 provides the years in which state separate-property acts were passed. While most of these laws were enacted in the nineteenth century, some were passed well into the twentieth century.Footnote 4
TABLE 1. Years in which states enacted married women's separate-property actsa
a Dates of passage are adopted from Geddes et al. (Reference Geddes, Lueck and Tennyson2009a) with the exceptions of Georgia, Tennessee, Texas, and Vermont. The dates for Tennessee and Texas are evident in our accounts for these states. For Georgia, we rely on General Assembly of the State of Georgia (1867) and for Vermont, General Assembly of the State of Vermont (1919). These discrepancies point to the complexity of discerning when the laws were enacted. Alaska and Hawaii are excluded because they did not become states until the 1950s and entered the union with married women's property rights in place (Carrozzo Reference Carrozzo2001; Sawada v. Endo 1977).
We trace events leading to passage of separate-property acts in five states, which are chosen to span regions (New York in the Northeast, Illinois in the Midwest, California in the West, Tennessee in the South, and Texas in the Southwest) and a wide time period of enactment (New York in 1848, Illinois in 1861, California in 1872, Tennessee in 1913, and Texas in 1963). In all five states there is evidence of women's collective efforts leading to the law's passage as well as hybrid framing and a radical demand effect. It is not our goal to overgeneralize and argue that all states followed this path to a married women's separate-property act. However, our more cursory examination of additional states suggests the pattern we find here is likely to be more widespread.Footnote 5 An important exception to our argument lies in the Deep South (which we discuss further), where in some states women's collective action is absent just prior to passage of separate property laws.
First Married Women's Separate-Property Act: New York
The earliest discursive steps taken by women to gain property rights occurred in the late 1820s in New York.Footnote 6 In New York City in 1828, Frances Wright along with Robert Dale Owen began editing the Free Enquirer, a newspaper with a growing following among members of the free thought movement (Eckhardt Reference Eckhardt1984). Within the first months of the small progressive periodical's publication, Wright wrote an essay on the need for revised property laws (Wright Reference Wright1829: 213). This was, in all likelihood, the first public statement in the United States by a woman in favor of married women's property rights. Wright offered a nascent feminist consciousness that later Susan B. Anthony and Elizabeth Cady Stanton would say profoundly influenced the next wave of feminist thinkers (Eckhardt Reference Eckhardt1984: 282; Stanton et al. Reference Stanton, Anthony and Gage1881: 52). In her essay, Wright spoke boldly, condemning the limitations on married women. She stated “[i]t is truly inconceivable and truly monstrous, that that mass of absurdity, injustice, and cruelty, styled the common law of England, should be still the law of revolutionized America” (Reference Wright1829: 213). Her framing drew on the sensibilities of a new nation and its desire to further its independence by distinguishing itself from British legal traditions. She constructed a hybrid frame, basing her appeals for a change in property law on revolutionary sentiment for independent governance, but directing this sentiment toward the need for women's property rights. Property rights for married women would help the new nation further establish its cultural independence from Britain. In stating her rationale, she harnessed existing revolutionary democratic ideals but deployed these beliefs to convince her readers that married women's economic status should be broadened.
In the 1830s others took up the mantle for married women's property rights. The bill was introduced in the New York legislature by Thomas Herttell, New York City state lawmaker, who was motivated to act by a combination of elements. He was part of the codification movement, an effort to remake common law into statutory law, and also a proponent of greater protection for married women and their children from “the unprovident, prodigal, intemperate, and dissolute habits and practices of their husbands” (Herttell Reference Herttell1839: 6). But his participation in the freethinking societies of which Frances Wright was an important leader also led Herttell to emphasize a feminist argument, specifically, the need for equality in property rights between the sexes within marriage (Kolmerten Reference Kolmerten1999: 34). He drew on the guiding principle of rights for citizens so prominent in the cultural ethos of the emerging nation, stating that it was “repugnant to the Constitution” for wives to be treated differently than husbands in matters of property (Herttell Reference Herttell1839: 15).
Ernestine Rose took some of the first steps in her door-to-door petition campaign to mobilize women on behalf of the New York married women's property bill (Kolmerten Reference Kolmerten1999: 34). Rose, a recent Polish immigrant, was an Owenite and freethinker and in the coming years would give public lectures on the same stage with Wright. In New York, as occurred later in other states, the women involved in agitation for property reforms were typically middle-class, white women, often married, but sometimes single. Rose's participation provides an example of immigrant women's involvement in the movement. In her petitioning, Rose also invoked the authority of rights, but seemingly without linking “rights” to the democratic ideals guiding development of the new nation. Instead, Rose's emphasis appears more purely feminist in her espousal of a woman's right to control and own property just like men, and thus her framing does not carry hybrid themes (Stanton et al. Reference Stanton, Anthony and Gage1881: 99). Many of the women Rose approached responded that they had rights enough, and perhaps because of a lack of hybrid framing to moderate her feminist-rights language, in this first petitioning and mobilizing effort, Rose had limited success. She was able to gather only five signatures in the winter of 1836 and 1837. While Rose was unable to recruit enough women to support the property-rights bill, she did make discursive inroads, helping to introduce the idea, the notion of a separate legal and economic identity for married women. But additionally, as of yet, in New York in the 1830s the radical foil of woman suffrage had not entered the public discourse (Wellman Reference Wellman2004: 148), and this, too, in all likelihood limited the influence of the early calls for property reform.
In the 1840s, as women continued to press their case for property rights in New York, the terrain began to shift in important ways. First, a nascent network of public feminist lecturers and their use of petitioning to place pressure on lawmakers for women's property rights grew. A small group of women led the way, including Ernestine Rose, Paulina Wright, and Elizabeth Cady Stanton (Basch Reference Basch1982: 136–37; Kolmerten Reference Kolmerten1999: 47–50). Rose traveled the state giving lectures, gathering signatures on petitions—increasingly more successfully—even addressing committees in the New York state legislature, in perhaps the earliest instances of a woman speaking before lawmakers on behalf of women's rights (Kolmerten Reference Kolmerten1999). Stanton also visited Albany in an effort to influence lawmakers favorably on changes in the rules of marital property (Stanton Reference Stanton2002 [1898]: 135). The legislature began to respond to the women, providing a clear marker of the importance of women's influence in the emerging debate over property rights. In 1842, in the first official response from New York lawmakers, the assembly judiciary committee credited women for its action, citing women's petitions as it issued its first report on married women's property rights. The lawmaker response, however, was not positive, and the committee warned that marriage is a “fundamental institution of society, as it is certain the most sacred and precious” and “no degree of caution can be too great, to guard against rash derangement of whatever may be good in the existing settled order of things” (Assembly of the State of New York 1842: 2). As of yet, the demand for property reform was not considered moderate enough and thus palatable for New York lawmakers to move toward reform, but, all the same, the lawmakers had responded to the women's demand.
The second shift in the terrain during the 1840s was that a demand for woman suffrage began to emerge, slowly initially, but by the state's Constitutional Convention in 1846, with a decidedly more public presence. Woman suffrage was perhaps first publicly advocated in the United States in a series of “Brother Jonathan” lectures in New York City in 1843. John Neal, a lawyer and journalist, gave the talks, calling for a formal electoral voice for New York's women (Neal Reference Neal1843). His proposal, covered widely but not favorably in the press, was clearly perceived as a radical, even absurd notion (Knickerbocker 1844: 79; Warbasse Reference Warbasse1987: 210–12). Neal debated women's status with writer Eliza Woodson Farnham in the pages of Neal's periodical, Brother Jonathan (Farnham Reference Farnham1843). In this early debate the first indication of a different reception for woman suffrage compared to women's property rights surfaced, with property rights deemed less extreme. Farnham (Reference Farnhamibid.: 236) stated that a “true” woman would eschew voting rights and yet would desire property rights as a matter of justice. Even though this early response viewed suffrage for women with great skepticism, the matter emerged as a public issue. Others also began to speak out in favor of woman suffrage, including Samuel May, an abolitionist minister in New York (Wellman Reference Wellman2004: 151–52). Debates over the franchise for women began to occur with some frequency among members of the abolitionist movement.Footnote 7 But importantly, interest in suffrage grew quickly among the early feminists, with limited factionalism between those supporting property rights and those supporting suffrage. Rose, Stanton, and Paulina Wright at the forefront of the demand for property rights, for instance, were all adamantly in favor of woman suffrage (Kolmerten Reference Kolmerten1999: 81; Stanton Reference Stanton2002 [1898]; Wellman Reference Wellman2004).
By 1846, during the New York Constitutional Convention, women from around the state sent a number of suffrage petitions to the convention's delegates declaring that a political voice for women was a natural right, and women, like male citizens, should not be subject to taxation without representation (Bishop and Attree Reference Bishop and Attree1846: 284, 646, 763). In the convention's debates, we can see the beginning of classificatory framing among power holders around property rights and suffrage, with the former coming to be understood, at least by a significant contingent of delegates—enough to win a positive vote on married women's property in the first round of voting—as a more moderate demand, but suffrage's labeling being far more radical. While property reform was debated at length between its proponents and opponents and voted upon twice during the convention, revealing significant support among some delegates, woman suffrage was ridiculed and failed to be treated seriously (Reference Bishop and Attreeibid.: 540–41, 1038–42, 1056–61).Footnote 8 Revealing the influence of early feminist framing around property rights, delegates in favor of the reforms adopted the hybrid framing of the activists, linking married women's property rights to the political development of the new nation as it “emerg[ed] from a system of feudalism, oppressive to woman and degrading to man” (Reference Bishop and Attreeibid.: 1039). Ginzberg (Reference Ginzberg2005: 150) reports that popular sentiment as well was becoming more enamored with the idea of ending coverture for women in marriage, and even that some feminist activists began to see the possibility of a strategic response, pressing forward with the property demand given its more favorable reception. As Basch (Reference Basch1982: 155) states, although the 1846 convention ultimately rejected property rights for married women, it “crystallized the issues, placed them in the political arena, and engendered some expectation that passage of a married women's act was merely a question of time.”
When a married women's property bill was introduced in the 1848 legislature, it easily passed, and there is no indication of any substantial dissenting opinion in the legislative record (Assembly of the State of New York 1848b; Senate of the State of New York 1848). The new law was the first in the nation to grant women the right fully to control and own property once married (State of New York 1848: 307). By this point in time in New York, expanding married women's control over property had become an acceptable and passable reform. Whereas lawmakers in 1844 had called women's marital property rights “a radical change” and refused to alter the law (Assembly of the State of New York 1844: 1), four years later with the radical foil of woman suffrage, the adoption of feminist hybrid framing by sympathetic lawmakers, and continuing petitioning by women in the state, the reform passed both legislative chambers with ease. New York women had continued to exert their pressure during this legislative session, primarily through petitioning (Stanton et al. Reference Stanton, Anthony and Gage1881: 66), again drawing on the imagery of a new and independent nation to make their case, in one petition beginning their demand by citing the Declaration of Independence and reminding lawmakers of the guiding principles of the new nation (Assembly of the State of New York 1848a: 1). While there is little evidence in the historical record of lawmaker concerns about economic difficulties, even though the economy was in a brief period of contraction, a continuing desire among some lawmakers to simplify and clarify the law also eased passage of the married women's property act (Basch Reference Basch1982: 156–57; Carter et al. Reference Carter, Gartner, Haines, Olmstead, Sutch and Wright2006). But the importance of women's collective agency in convincing lawmakers that property reforms were in line with the interests of the young nation and opening a political opportunity for reform cannot be overlooked. As we will see, when events in New York are compared to those of other states, the importance of women's activism and the salient role of hybrid framing and a radical demand effect become all the more apparent.
Parallels Elsewhere
Illinois
In the Midwest as well there is evidence of women's collective agency at work in winning passage of married women's property rights and of a radical demand effect stemming from woman-suffrage activism. Illinois provides such a case. The earliest feminist voices in Illinois, often coming from white women with rural backgrounds, were moderate ones. For most women living in the nineteenth-century Midwest, their lives were governed by a “pervasive domestic orientation,” often driven by women's duties on the family farm (Johnson Reference Johnson2010; Riley Reference Riley1988: 200). Given this orientation, then, it is not surprising that emerging feminist discourse in the region linked women closely to the domestic sphere and viewed them as intellectually and emotionally different from men. Hannah Tracy Cutler, who by 1860 was pressuring Illinois lawmakers for a change in property law, wrote that women and men were highly distinct creatures, and this distinctness created a need for women's voice in public decision making. She wrote, “harmony of the world demands women's interest and influence . . . to balance the stern, cold, calculating spirit of the other sex” (Cutler Reference Cutler1853: 14). In Cutler's advocacy for greater gender equality, constructed on the basis of gender difference, she combined competing views of equality and difference into a single hybrid frame, arguing that women should have a greater presence in the “world” and be more like men in this sense, but they should also have a more equal role because of their different natures. Their “softer sympathies” and “more gentle natures” were needed to balance the “stern, cold, calculating spirit” of men.
Cutler's feminism around property likely stemmed from her interactions with eastern feminists. In the mid-1850s she attended national women's rights conventions in the East, meeting Ernestine Rose and traveling with Susan B. Anthony in New York during an 1859 lecture campaign to extend the New York married women's property law to give married women rights to their earnings (Million Reference Million2003). In all likelihood, Cutler's work in New York encouraged her willingness to pursue expanded married women's property rights in Illinois. Just a year after working in the East, Cutler began a campaign to change property law in Illinois.
By the mid-1850s a women's movement was emerging in Illinois, with the state's first suffrage organization founded by Catharine Waite and a growing network of Midwestern women (and some men) traveling the state making their incomes from public lectures on women's rights (J. Smith Reference Smith and Johnson2010; Stanton et al. Reference Stanton, Anthony and Gage1886: 560–61). Lucy Stone from Massachusetts added to this momentum by spending time in Illinois in the late 1850s, giving a few public speeches around Chicago and gathering a number of signatures on a small petition demanding suffrage and property rights for married women (Million Reference Million2003: 257). Illinois lawmakers’ sentiment toward the two demands is indicated in their differing response to woman-suffrage and marital-property rights. The woman-suffrage demand was tabled immediately without further action, but the property provision was considered in detail with lawmakers’ sending it to the Senate Committee on the Judiciary for further discussion (Reference Millionibid.). In the end, however, as with suffrage, no further action was taken.
Cutler, now working with Frances Gage, a Missouri women's rights activist, began a concerted effort in 1860 to convince the Illinois legislature to give married women property rights (Stanton et al. Reference Stanton, Anthony and Gage1886: 561–62). Cutler and Gage followed Stone's lead but expanded the campaign, canvassing the state, collecting a large number of petition signatures demanding that married women be able to “acquire and hold property in their own names, and to transfer and devise the same.” Late in the year, they publicized their petition in the Chicago Tribune (1860: 2) offering framing that moderated their demand for reform. They did not invoke the language of economic rights and justice for women. Instead, they drew on traditional gender arguments of protecting women, arguing that wives needed safeguarding in the home particularly from “drunken,” “unfaithful,” and “debauched” husbands who, unlike “good” husbands, took advantage of and abused their wives and children. Such men gambled, drank, and squandered the family wealth, and women had no protection under the law for themselves, their children, and their homes. Both Cutler and Gage were also temperance activists and brought into the property campaign concerns about alcohol abuse (Bonham Reference Bonham1883; J. Smith Reference Smith and Johnson2010). Cutler and Gage went on to appeal to the “Christian morality” of readers to support a new property law to shield women. Their hybrid frame was different than that of their counterparts in New York. The Illinois activists demanded greater rights for married women, but utilized themes of patriarchal protection for women to make their case, particularly for wives in need of defense from husbands who neglected or abused them, their children, and the family income. These feminist reformers anchored women in the domestic sphere to make their case for a change in law. Instead of portraying women as citizens in the economy desiring equal status and rights, they appealed to traditional gender norms that defined women as domestic actors in need of protection by male-legislated law.
In response to the women's petitioning and public demand, the Illinois legislature debated a property bill. Some lawmakers resisted the reform on grounds that such law would allow husbands to fraudulently avoid paying their debts by conveying property to wives to shelter family wealth from creditors (Daily Illinois State Journal 1861). But a majority argued in favor, drawing heavily on the hybrid frame offered by the women activists, that a marital property law would protect wives and children from irresponsible husbands. When opponents in the legislature warned that the measure would bring “radical change” in Illinois law, others responded by characterizing the proposed law as moderate in nature and nowhere near as radical as other gendered reforms being considered at the time (ibid.: 3). One lawmaker clearly articulated a radical demand effect by speaking of the “ghost of ‘women's rights’” and asking “would it not be wise policy to yield these mere matters of form and concede to married women these rights which common honesty and the plainest rules of public policy demand, before a pressure is brought to bear which may carry legislators clear over to the extreme” (ibid.). Women in Illinois at this time were beginning to demand voting rights. The lawmaker warned that more “extreme” demands might arise if the moderate property reform was denied. In the end, the Senate voted 14–8 in favor of separate property rights for women, and the House soon followed (Chicago Tribune 1861), giving married women in Illinois an economic foothold: the right to own and control their property within marriage.
California
As in the other states discussed here, in California, women's discursive efforts and mobilization played a pivotal role in winning property reforms. When California became a state in 1850, it did so with an article in its new constitution giving married women legal ownership of their separate property. However, the state's first legislature promptly enacted new law granting husbands the right to manage and control their wives’ property, in effect rendering married women's ownership a legal fiction (Statutes of California 1850).Footnote 9 This set the stage for a concerted effort by women to reform property law in the latter half of the nineteenth century. Women in the state, again, middle-class, white women but often professional women with careers in journalism or law, began their campaign in the aftermath of both the American Civil War and the California Gold Rush, with especially the latter just before the war bringing about a striking surge in the state's population, including many women who moved into the region.
In 1869 Emily Pitts-Stevens began a wave of discursive feminist activity in the state by purchasing a newspaper, which she renamed The Pioneer and transformed into a women's rights publication (Bennion Reference Bennion1981). Unlike feminist activists in New York and Illinois who in their discursive efforts around married women's property rights used preexisting, typically largely male-controlled discursive space, such as the Free Enquirer and Chicago Tribune, Pitts-Stevens created her own, “free space” (Evans and Boyte Reference Evans and Boyte1986) to espouse feminist views. In an early issue she wrote:
We defend the rights of women fearlessly and to the best of our ability. We shall insist upon woman's independence—her elevation, socially and politically, to the platform now solely occupied by man. We shall claim for her each privilege now given to every male citizen of the United States. (Mercury 1869a: 2)Footnote 10
These were strong words in the late 1860s, and Pitts-Stevens published the weekly newspaper for five years making it the leading voice of the emerging women's movement in California. The Pioneer was an ardent supporter of woman suffrage, but it also agitated for property reform. As one scholar of the burgeoning movement in California (Schuele Reference Schuele1999: 163–66) states, the early California feminist mobilization was as much about property rights as it was about suffrage. In one of The Pioneer's earliest issues, Pitts-Stevens published an article titled, “Facts for Women: The Property Rights of Married Women,” in which an unnamed author outlined the current and limited state of married women's property rights in California, concluding that “[w]e might almost say that she has no rights that he [the husband] is bound to respect” (Mercury 1869b: 1). In the following year the newspaper reprinted a speech given at a suffrage convention by Judge Addison Crane (the likely author of the earlier article), who discussed inequities inherent in the state's property laws and indicated that the legislature should address the matter. The Pioneer reported that his speech “was listened to with much attention and was loudly applauded” (1870a: 1). The suffragists provided fertile ground for criticisms of existing property law, and a feminist legal consciousness began to grow as women formulated their own critique of the existing legal inequities (e.g., The Pioneer 1870c).
At first activists linked the property matter to their demand for suffrage. During the 1870 legislative session, a 3,000-name suffrage petition was sent to lawmakers, who in response formed a special Senate committee. A number of activists, some of them early women lawyers, were invited to speak before the committee, including Laura de Force Gordon and Caroline Spear, in women's first appearance before a legislative body in the state (Schuele Reference Schuele1999: 170). The women's rationale for the vote, however, was intimately tied to married women's unequal property rights. Spear argued that unequal property laws permitted “profligate and idle” husbands to squander their wives’ wealth. She told lawmakers that “[y]our petitioners ask for no privileged or exceptional legislation for women, no protection for life or property save that which is extended to men. . . . Bearing the same relation to the State as men with similar needs, they ask for similar rights” (The Pioneer 1870b: 1). She concluded that if women possessed the vote, no such laws would exist. Mrs. S. B. Lewis, another rights advocate, speaking later before a House committee, agreed, stating, “give us the ballot, the key to all civil rights, and it will redress them [the unequal laws]; for the root of them all is the fact that man claims the right to be our representative” (The Pioneer 1870d: 2). The arguments proffered by these women viewed the right to vote as a means of achieving other ends, especially property rights for married women, and women, in general, deserved to be recognized by the law in the same way men were, as independent and equal citizens.
These activists rarely used hybrid framing to moderate their claims, and perhaps because of this, lawmakers denied the women's demand, refusing to grant voting rights. But the women pressed onward. In the following year the newly formed Pacific Coast Woman's Suffrage Association published a tract stating that current property law “disables and degrades the citizenship of California women” and establishes married women as “inferior and serf-like” (Woman’s Journal 1871: 247). At the same time, however, the California feminists discerned that, in order to win broader rights for women, they needed to start by pursuing legislation that lawmakers would support (Schuele Reference Schuele1999: 164). The women saw that the demand for suffrage encountered staunch resistance among lawmakers, and activists began to realize that political leaders might be more willing to enact property reforms than a formal political voice.
In addition, sentiment against existing unequal property laws was spreading among California women. Early in 1872, organized women focused intently on the unequal property laws and sent petitions with more than 5,000 signatures to lawmakers with a demand for suffrage but also pointedly articulating their desire for a change in property law. They stated:
That the laws may be so changed that women shall after marriage have the same rights and power to contract, and have the same absolute ownership and dominion over their own property as before marriage, so that she shall be, in respect to her natural and property rights, the equal of her husband. (Schuele Reference Schuele1999: 181–82)
Once again, the women were invited to speak before lawmakers. A prominent speaker was Nettie Tator, who emphasized the need for women to have laws in place that would provide them with economic protection. Tator, at least in part, reigned in the feminist equal-rights claims and offered a moderated appeal. While she was in favor of woman suffrage, she took steps in her speech to build on lawmakers’ reservations about granting suffrage, stating that if women had property rights, and therefore a “protector” in the form of the state, “those who are now clamoring for the ballot, would be much fewer in numbers than they now are; for with many, this is a question of bread and butter, instead of a question of right” (Tator Reference Tator1872: 11). Her claim offered the suggestion to legislators: granting property rights could dampen demands for the vote among women. This framing, at an important juncture in the debates over property, offered a different approach than the equal-rights feminism that had been so prominent in California women's demands up until this point. According to Tator, granting married women the right to their separate property offered women traditionally gendered “protection” from profligate husbands and a volatile economy. But, importantly the change in property law might reign in more radical feminist demands.
In response to the women's efforts, the legislative committee issued a favorable report, indicating that it understood property reform to be a less radical legal change than granting woman suffrage. The committee referred to suffrage as a proposal that would “require years to crystalize it into authoritative law,” while the property reform was deemed “within the province of ordinary legislation” and existing hindrances on married women as law that had “survived its usefulness” and was now “a lever of oppression, and often of robbery” (Legislature of the State of California 1872: 3, 10). The latter reform, the committee stated, could be “granted without delay” (ibid.: 3). In the end, while lawmakers continued to refuse to grant women voting rights, the legislature passed a married women's separate-property act.Footnote 11
Tennessee
Differences in the route to passage of married women's property laws exist among the southern states. In some states, such as Georgia, North Carolina, and South Carolina, property laws were enacted just after the Civil War in response to the war's economic devastation and the need to protect some portion of family wealth from husbands’ creditors (Lebsock Reference Lebsock1977). If wives could own separate property, the property was not legally subject to husbands’ debts and therefore could be shielded from creditors. Women played little role in bringing about these changes in law. The reforms were driven more by economic necessity in a war-ravaged South than by feminist agitation.Footnote 12 But other southern states such as Tennessee and Texas followed a different path, one similar to the states already discussed, where women played a prominent role in winning reforms and property rights came later, often after most states in the East, Midwest, and West (see table 1).
In 1909 little had changed in Tennessee with regard to marital property relations. Married women continued to be barred from legal ownership of any property they acquired before or during marriage. Organizing among southern women, especially for greater rights for women, came later in the South than it did for women in other regions, largely due to the more conservative gender culture in the South that slowed development of a feminist consciousness among many women (Scott Reference Scott1970). But with a growing women's club movement early in the twentieth century in Tennessee, Lizzie Crozier French, a leader in the movement, took note of the unequal property laws and decided to educate members on the matter (French c. Reference French1913). French, while not formerly trained as a lawyer (the profession was closed to her as a woman during her formative years), had studied law on her own and, like Elizabeth Cady Stanton in New York before her (Stanton Reference Stanton2002 [1898]: 31–32), through her informal studies came to resent that women did not have the same legal rights and privileges as men (Tennessee Bar Association 1912: 159). In 1885 French had founded the Ossoli Circle in Knoxville, the first such women's club in the state (Ossoli Circle 2012).Footnote 13 In its earliest years, the group was a literary club, but in time the women began to focus on social reform. By 1896 the Ossoli Circle had become the Tennessee Federation of Women's Clubs (TN-FWC), a growing statewide organization of largely white and middle-class women (Wright Reference Wright2006). In 1909 French introduced the issue of unequal property rights in a speech at the organization's annual convention, pointing out that women had “been kept in ignorance of their true position before the law” (French c. Reference French1913: n.p.). In the next few years the property issue politicized the group and launched new political action by the women. As a result of French's speech, the TN-FWC voted to further educate its membership and form a Legislative Committee to begin investigating the law to see what might be done to rectify the inequality.
The Legislative Committee provided a mobilizing structure for the women's group that would educate members, develop their demands, and in time lobby lawmakers for new law. In 1910 the Legislative Committee began drafting a property bill to present to political leaders (Tennessee State Library and Archive 1910b). The committee was chaired by attorney, Eleanor Coonrod, one of the first women in Tennessee admitted to the bar, and Lizzie Crozier French bragged that the committee was composed entirely of women lawyers (Tennessee State Library and Archive 1910a). One can see differences between the married women's property mobilization of the nineteenth century and those of the early twentieth century, with female legal professionals joining the mobilization in later years and organizational structures now taking the form of specialized legal departments inside larger women's groups. In the earlier years, married women's property mobilizing structures were often instead loosely organized, small groups of women.
The TN-FWC continued to educate its membership, with speeches on married women's property at annual conventions and discussions in local club meetings (Caldwell Reference Caldwell1912). At the 1911 state convention, one member argued in a speech that current property laws represented gender relations of the “Old South,” in that “in this disposition or protection of women one can see something of the chivalry of the Old South, the desire to shield [women] from exactions of business, the daily thought of money, the mercenary greed of gain” (Tennessee State Library and Archive 1911). Married women's participation in these affairs, the member argued, was rather women's responsibility, just as it was men’s, and men should not take a protective stance, shielding (and barring) women from these activities. A consciousness was growing among Tennessee women, and they began to articulate a desire for greater economic equality, challenging the protective, patriarchal social order.
By 1912, the women began to expand their mobilizing structure by seeking allies. French appeared before the Tennessee Bar Association, still virtually an all-male organization, asking for its support in changing the law (Tennessee Bar Association 1912: 155–64). This was likely the first year women were permitted to speak before the legal association. French framed rationales for changing the laws that did not directly draw on women's growing feminist consciousness. Instead, she stated that Tennessee lagged behind other states in granting married women greater power over property, and while she mentioned in passing that more equal laws would be more just laws, she emphasized that the current laws caused hardships for women and children deserted by husbands and fathers. Her framing, like that earlier in other states, was hybrid in form, with a combination of arguments blended together in order to present a case for reformed property laws that was not radical and rights-based, but instead offered a stance more acceptable to her male audience. French argued that the state's economy would benefit by moving into a new and modern era of progressive property rules, and women, children, and families would be protected from negligent husbands who squandered the family wealth and endangered the welfare of wives and children. Her persuasive attempt before the Tennessee Bar was successful. In early 1913 the group came out in favor of a change in women's property laws (Nashville Banner 1913a).
The male legal establishment may have also been prompted to support a married women's property law by the fact that during these years the Tennessee woman suffrage movement was gaining speed. Suffrage groups had organized in Knoxville, Memphis, and Nashville within the last few years and reports of the growing momentum appeared in the state's newspapers (Collaway Reference Collaway1913; Nashville Banner 1913b). In addition, the national suffrage leadership claimed that female voting in Tennessee was just around the corner (Collaway Reference Collaway1913). But the state's male legal leadership did not look upon voting rights for women as favorably as it did upon changes in property laws. When French spoke before the Tennessee Bar Association she pointed out that a woman-suffrage speaker just the day before had met with stony silence before the group, while she, however, speaking of the need for a change in marital property laws, received numerous rounds of applause (Tennessee Bar Association 1912: 157). Once again, the record indicates that the suffrage demand was perceived by male leaders as a less acceptable demand. Suffrage promised greater political power for women that would give them a voice in a variety of issue areas, not just concerning property rights. Tellingly, the TN-FWC did not link woman suffrage to its demand for reformed property laws (Tennessee Federation of Women's Clubs c. 1912), and one historian concludes that the TN-FWC did this in order not to lose support for a married women's property law by connecting it to the more far-reaching reform of woman suffrage (Wright Reference Wright2006: 22).
Organized Tennessee women also worked to broaden public support as another means of influencing lawmakers. They sought coverage in local newspapers and published a 30-page pamphlet containing reasons why property law should be altered, “to bring the disabilities and discriminations . . . to the attention first of the general public and then of the Legislature” (Memphis News Scimitar 1912; Nashville Banner 1912a; Tennessee Federation of Women's Clubs c. 1912: 4). The pamphlet, as well, used hybrid framing, briefly mentioning the need for “justice” for women, but emphasizing the hardships faced by women who lost property and wealth to “shiftless” husbands, as well as the difficulty and unpredictability of conducting business for both creditors and debtors when the wife's status in financial agreements was murky at best. The TN-FWC pamphlet, in fact, began with the claim that,
commerce as well as justice would be promoted if women were rendered capable of performing during marriage those acts which, previous to marriage, they are now legally permitted and actually accustomed to perform. (ibid: 4, emphasis added)
The activists’ arguments held an undercurrent of feminist indignation, but the persuasive attempt did not emphasize equal rights for women. Rather, the women offered a blended frame, in which the justness of equality was named, but other, less radical ideas—such as enacting more modern property laws to promote business and providing legal protections for women—were highlighted.
Lawmakers introduced the TN-FWC's bill early in the 1913 legislative session (Caldwell Reference Caldwell1913). By this time, club women from around the state had heavily lobbied their representatives, asking for support (Caldwell Reference Caldwell1913; Tennessee State Library and Archive 1912–13, 1914). Federation members also spoke at legislative hearings, and lawmakers, building upon the hybrid framing of the activists, began to echo particularly the federation's claims that the change in law would offer protection for women from irresponsible husbands (Nashville Banner 1912b, 1913c, 1913d). With only six dissenting votes, the bill passed in the House and was voted unanimously in the Senate (Tennessee State Library and Archive 1912–13). The governor did not sign the bill, and it became law without his signature. Married women in Tennessee, due to the efforts of organized women, gained equal rights in marriage to own and control property (Tennessee 58th General Assembly 1913: 59).
Texas
Married women in Texas did not win full legal rights to their separate property until 1963, and while the legal skirmish over property rights at this late date makes Texas distinct, Texas women's activism and lawmaker response to it provide important insight into the radical demand effect, insight that suggests generalizability of the argument posed here, beyond suffrage. Women, of course, had voting rights for some time by 1963, so a demand for woman suffrage could not serve as a radical foil during the Texas property campaigns. But interestingly, a radical demand effect still occurred. Just before Texas married women won legal rights to their separate property, the women's movement in the state also began to lobby for an equal rights amendment, and instead of suffrage providing the radical threat pointed to by Haines (Reference Haines1984), the proposed Texas Equal Legal Rights Amendment presented the threat that nudged political leaders toward a new property law.
The Texas case is complex in another way. An earlier push for property reform occurred in Texas at about the same time that Tennessee women won separate-property rights, but the early effort in Texas was not successful. In 1913, following a campaign to change Texas law by the Texas Federation of Women's Clubs along with attorney, Hortense Ward—the state's first woman admitted to the bar—a new married women's property law was enacted (Dallas Morning News 1913; Ward Reference Ward1913). But as the activists recognized, the law contained a significant weakness. For a married woman to convey her separate property, her husband's consent was required (Texas State Legislature 1913: 61–63; Daily Advocate 1913). The reason for the limited victory may have been a combination of assertive framing on the part of some of the proponents of the law and a last minute effort during the legislative debate to link the change in property law to woman suffrage.
Early in the 1913 campaign, activist rhetoric centered on the fact that restrictive property laws classified women with “idiots and lunatics,” revealing, according to the activists, the law's “absurdity” (Austin History Center 1905: 6; Dibrell Reference Dibrell1908: 8). Proponents forcefully argued that, once married, “a woman's identity is regarded as merged into that of her husband” and thus an “equal rights” property law was needed (Texas State Library and Archives Commission 1909: n.p.). Although later in the campaign Ward took steps to moderate the framing, providing a hybrid women's protection argument (Ward Reference Ward1913), the earlier, more feminist, women's rights framing may have caused some lawmakers to significantly limit the 1913 law.
But another factor likely made legislators shy away from full property reforms. A prominent argument emphasized by many lawmakers during the 1913 legislative debate was that property rights would be an “opening wedge to equal suffrage,” signaling a risk associated with property reform (Daily Advocate 1913:1). In this instance, opponents used the threat of a radical demand, suffrage, to derail the property proponents, leading to the defeat of the latter. As Haines (Reference Haines1984) suggests, a negative radical demand effect is possible, when the more moderate demand is classified with the more radical proposal. This appears to have occurred in Texas in 1913. Because the fight for women's voting rights required women's full attention in the coming years, organized Texas women did not return to property law reform again, at least not in full force, until the 1950s (Gammage Reference Gammage1982).
Hermine Tobolowsky was a practicing attorney in Dallas in the mid-1950s when she was contacted by the mercantile house, Dun and Bradstreet, concerning the credit rating for the business she inherited from her parents. Dun and Bradstreet asked whether she had taken legal steps to remove her “disabilities of coverture” given that she was a married woman proprietor of a business in a state that did not protect a married woman's property from her husband's control (Texas Tech University 1955). The agency told her that if she had not, it would be unable to grant her a rating because questions about her lack of feme sole status would undermine creditor confidence. This news likely produced a new consciousness for Tobolowsky, an awareness of the unequal economic foothold held by married women (Wyden Reference Wyden1961). It was just after the Dun and Bradstreet inquiry that Tobolowsky launched her activist career, working with the Texas Business and Professional Women's Clubs (TX-BPW) to change Texas law to give women greater legal rights.
In the early 1950s, both the Texas League of Women Voters (TX-LWV) and the TX-BPW, both largely comprised of middle-class, white women with the latter including many professional women, discussed women's lagging property rights (Brand Reference Brand1950; Texas Tech University 1953). These years were an educational and consciousness-raising period for the women's groups, but they also began to take steps to gain legislative attention, succeeding in 1955 in convincing lawmakers to begin an investigation into the matter. During the next year the Texas Legislative Council explored women's “legal disabilities” and recommended passage of a married women's separate-property bill to lawmakers (Texas Tech Texas Tech University, Special Collections Library, Southwest Collection (Lubbock, & TX) 1956b). The council held public hearings, and its investigation caused the women's groups to redouble their mobilization efforts in order to influence the investigative process. The TX-LWV and TX-BPW coordinated activities, forming a coalition to take advantage of the opportunity presented by the Legislative Council and launching a statewide campaign to contact every lawmaker before the beginning of the 1957 legislative year (Texas Tech University 1956a, 1956b). The League of Women Voters took steps to publicly frame the matter of women's property rights as the “freedom” to dispose of property, thereby tapping into a core American value. The organization also explicitly moderated its framing by stating that “this is no feminist movement afoot”; the reworking of the law was simply to “bring . . . Texas laws up-to-date” (Texas Tech University 1956c). Activists used hybrid frames that combined a demand for greater rights for women with ensuring freedom and modernizing Texas law.
The 1957 legislative session, however, was a watershed moment for Tobolowsky who led the TX-BPW property-reform efforts. She testified during a Senate committee hearing, presenting her arguments and citing cases in which a woman's husband was unable to provide consent for a wife to sell her separate property, as was required by law (Lesh Reference Lesh1986). In one case, the husband had a stroke and could not give consent to sell his wife's stock to procure funds for his medical care. When Tobolowsky provided a series of such examples to underpin her rationale for the change in law, some lawmakers, instead of responding with detailed questioning, chose to ridicule her, for instance, with one lawmaker stating that a woman did not possess “sense enough to sign a deed or to convey stocks without the advice and consent of her husband” (Fink Reference Fink2003; Lesh Reference Lesh1986: E2). Ferree (Reference Ferree, Davenport, Johnston and Mueller2005) tells us that ridicule can be a form of “soft repression” used to silence oppositional views and that feminists particularly have been targeted with this strategy. The lawmakers’ response was a turning point for Tobolowsky, convincing her that a piecemeal approach to women's rights in which specific laws were sought to remedy particular inequalities would take too long (Fink Reference Fink2003). Instead, Tobolowsky and the TX-BPW began a concerted push to win an equal legal rights amendment, one based on the national-level equal rights amendment sought by the National Woman's Party (Texas Woman's University c. 1959).
Over the next few years the TX-BPW's campaign for a Texas Equal Legal Rights Amendment (ELRA) gained substantial ground as the group blanketed the state with speakers and educational pamphlets (Fox Reference Fox1958; Texas Woman 1959). The BPW also reached out to other women's groups to build an alliance supporting the ELRA (Fox Reference Fox1958; Rogers Reference Rogers1962). The TX-LWV, however, declined the invitation, stating that it preferred a more limited approach and would continue its work for a change in only the state's property laws and would oppose the more far-reaching ELRA. The disagreement between the TX-BPW and the TX-LWV over the ELRA produced clear factions within the Texas women's movement. The TX-LWV argued that the ELRA would “throw into question” hundreds of existing laws, creating “a period of extreme confusion” for lawmakers, judges, lawyers, as well as citizens (Texas Tech University 1962: 1). In Texas, then, this factionalism produced both a radical flank and radical demand effect in the campaign to change property laws.
By 1963, the possibility of success for the ELRA was becoming apparent. Tobolowsky reported that, had the amendment been brought to the floor in the state Senate in 1961, the women would have had the votes needed to pass it, and in 1963 the Senate voted positively on the proposal (Brogan Reference Brogan1962; Ford Reference Ford1963a). Moreover, Governor John Connally supported passage (Jones Reference Jones1963). With growing political support, victory seemed imminent.
But as one observer pointed out, the success of the ELRA prompted its opposition to act (University of North Texas 1963). Members of the Texas Bar Association led the opposition effort, publicizing the claim that the ELRA would not achieve the aims women wanted and rather would cause “chaos in Texas family law” and undermine the state's community property system (Amsler Reference Amsler1963: 13-A). One member stated “the hazard to sound jurisprudence is sufficiently grave” if the amendment were to pass (Big Spring Daily Herald 1963: 3-A).
As momentum built for and against the ELRA, two new bills, one giving married women the right to fully control and own their separate property and the other providing married women with the right to sign contracts without their husband's rejoinder, were introduced in the legislature. Lawmakers, in considering the property bills in light of the ELRA, began a sorting process in which ultimately the ELRA was deemed too radical for a positive vote, while the property bills were viewed positively. A number of lawmakers argued during their debate that what women actually wanted was property rights. As one lawmaker stated, putting an equal property law in place would “enable [the women desiring reform] to get what they want without jeopardizing the privileges [such as alimony] that other women want to retain. This is the intelligent way . . . the other way [the ELRA] is the emotional way” (Ford Reference Ford1963a: 1). Reporting on the legislative debate, a newspaper stated, “[t]he enactment of specific [property] legislation may come closer to doing what needs to be done, and without danger of disruptive effects in other fields, than the constitutional amendment approach taken earlier” (Fort Worth Star Telegram 1963: 12).
When the property bills came up for a vote, the House quickly approved both, at the same time resisting passage of the ELRA (Ford Reference Ford1963b; Fort Worth Star Telegram 1963). The Senate concurred on the property measures, and married women in Texas gained separate-property rights (State of Texas 1963). Radical demand and flank effects drove the enactment of new property law. One TX-BPW member saw precisely this dynamic. Writing to Tobolowsky after enactment, she stated that the property bills “were introduced because of fear that the Equal Legal Rights Amendment would pass” (University of North Texas 1963). Indeed, just as woman suffrage with its broad implications for democracy triggered a radical demand effect earlier in other states, the demand for an equal rights amendment with its potentially far-reaching legal influence prompted Texas lawmakers to agree to a more moderate reform.Footnote 14
Conclusion
Our investigation of the passage of the married women's property acts in these five states reveals a decisive role for women's activism. Although many historical accounts overlook women's agency or portray women as marginal actors in gaining these reforms (e.g., Geddes and Lueck Reference Geddes and Lueck2002; Hoff Reference Hoff1991), our study reveals a pivotal influence for feminists. During the nineteenth century and in some states well into the twentieth century, women mobilized to change property laws to give married women a foothold in the growing economy. The timing of these mobilizations coincided with passage of the separate-property acts. Women used hybrid framing to link their demand for property rights to beliefs already widely held in society, in the earliest years drawing on a desire for legal and cultural independence from Britain, later, on commonly held beliefs that women needed protection from both irresponsible husbands and economic vicissitudes, and still later, on an emerging desire for more modern laws. Their blended framing helped moderate their demand for greater economic equality, rendering their entreaties more palatable to lawmakers.
In each of the states examined here, women's push for property laws occurred at the same time women pressed for the right to vote or, later in Texas, for an equal rights amendment, and in each case a positive radical demand effect unfolded. Suffrage or an equal legal rights amendment provided a contrast for the demand for property rights. When women called for property reforms at the same time they demanded the vote or an equal rights amendment, the latter were deemed more far-reaching legal changes that posed a more significant threat. The simultaneous bid for property reforms, on the one hand, and suffrage or an equal rights amendment, on the other, provided a circumstance in which political leaders were willing to grant the moderate reform in hopes that this would derail efforts for more sweeping changes. Women played an active role in this process, with their hybrid framing working to label the demand for property laws as moderate, while lawmaker concern about the broad reach of voting rights or an equal rights amendment characterized these latter legal changes as too radical for enactment.
Our investigation into the circumstances leading to the married women's property acts refines our understanding of Haines's (Reference Haines1984) positive radical flank effect, in three ways. First, the histories of the married women's property acts suggest that a radical demand rather than radical flank effect is a more accurate portrayal of the dynamics examined here. It was the contrasting demands that produced the positive outcome for property rights, rather than contrasting movement flanks. While in Texas a radical flank effect also seems to have been operative—there is clear evidence of factionalism in Texas among women around the claims—in the remaining states such factions were not apparent. Rather, a single mobilization among women supported both suffrage and property reforms. In the end, we find that the constant among all states considered here is a demand rather than flank effect.
Second, our study reveals that a radical demand effect entails a process in which activist demands are socially constructed to be more moderate or more far-reaching and radical, by both activists and lawmakers (and potentially other actors as well), and this important classificatory process needs to be part of the narrative in describing a radical demand effect. In the struggles over married women's property rights, activists framed their appeals for changes in property laws in ways that moderated their claims. While political leaders often adopted such framing, in turn, they also labeled appeals for the vote and for an equal rights amendment as radical demands, bids that posed clear threats to the established gendered political and legal order. Scholars invoking a radical demand effect will want to pay close attention to the social construction of meaning likely to be an integral part of establishing one demand as a radical foil for another.
Building on this second contribution, we find that, as a positive radical demand effect unfolded and lawmakers made sense of property and other demands by women, a “splitting” process occurred among lawmakers. That is, lawmakers distinguished between activist demands, deeming claims for women's voting rights or an equal rights amendment as too potent for passage, while labeling the property reforms as more moderate. An early episode in Texas history in 1913 reveals a counterexample, which can make the splitting process even more evident. In Texas in 1913, instead of “splitting” the reforms and evaluating them as different, lawmakers “lumped” them together and characterized property reforms as a first step toward the more radical change of granting women property rights. This fits what Haines (Reference Haines1984) describes as a negative radical flank effect. As a result, in 1913 Texas, both property reform and suffrage were denied. We believe that Haines (Reference Hainesibid.) is correct, however, to argue that often the influence of radical demands by activists can produce positive outcomes for social movement actors. Our investigation of the married women's property acts suggests this. Our work, though, also suggests that if collective actors take framing steps that assist lawmakers in “splitting” rather than “lumping” demands, activists may be more successful, at least in winning more moderate demands.
Our third contribution is to note that a radical demand effect can help us further understand how political opportunities emerge. In our study, we consider how the radical-foil effect influences lawmaker action. The combination of activist hybrid framing that allowed lawmakers to view the proposed property reforms as moderate in scope and the radical foil provided by concurrent demands for woman suffrage or equal legal rights convinced political leaders that altering the rules regarding marital property was a more acceptable course of action. In short, these developments, which include activist framing, produced a political opportunity for a change in property law. Few social movement scholars consider how activists help create political opportunities for movement political success (Alimi Reference Alimi2006). We draw the connection between a radical demand effect and political opportunities to suggest that through a positive radical demand effect, including the activist framing that helps bring about the effect, a political opportunity for policy reform can emerge.
Women's mobilization and a radical demand effect were not the only circumstances leading to the married women's property acts. As others (Basch Reference Basch1982; Chused Reference Chused1983; Geddes and Lueck Reference Geddes and Lueck2002; Hoff Reference Hoff1991; McDevitt Reference McDevitt2010; Rabkin Reference Rabkin1980) have rightly noted, economic volatility and women's growing participation in economic endeavors also set the stage for these legal changes, and in some states, such as in some southern states just after the Civil War, extreme economic hardship produced changes in property law without feminist mobilization. We also note in our analysis a possible role for the temperance movement in that arguments used by temperance proponents explaining the hardships faced by wives when husbands abused alcohol could also contribute to more progressive marital property provisions (see also Warbasse Reference Warbasse1987). Our study, however, points to the importance of early feminist activism in winning passage of these laws. We show that women's efforts played a pivotal role in a number of states. Women demanding property reforms, in fact, could articulate the links between, say, economic hardship and women's greater economic roles, on the one hand, and the need for broader property rights, on the other. We find that women's agency could be quite effective, especially when both property and a more radical demand were agitated for side by side.
Efforts by women to change property laws were highly successful, as the histories recounted here illustrate. The new laws gave women an important legal foothold in the expanding marketplace and also defined new economic power for them in the private domain of marriage. These mobilizations by women to gain property rights fueled the nascent women's movement (Rabkin Reference Rabkin1980; Stanton Reference Stanton2002 [1898]) and likely suggested to them that further, even more radical reforms were possible. In the end, this is decidedly the opposite effect that many lawmakers hoped for when granting married women decision-making power over property.
