October 3, 2022
Name the U.S. senator who introduced the legislation that would eventually become the 19th Amendment to the United States Constitution, giving women the right to vote.
Now name the U.S. Supreme Court justice who ruled during the 1920s that the law must treat men and women equally – an idea that underpins America’s current system of legal protections against sex discrimination.
If you don’t know, then you’re in the majority. These were the same person, and that person was from Utah. His name was George Sutherland.
Sutherland is arguably one of the most politically accomplished and historically influential Utahns in state history. He is the only Utahn to serve on the Supreme Court, and he was a close friend or political adviser to U.S. presidents and candidates. He also played an instrumental role in the progress and successes of women’s rights during the 20th century.
George Sutherland’s fundamental role in women’s rights movement
In 1895, Sutherland helped draft the Utah Constitution, which protected women’s right to vote – Utah was one of only a handful of states and territories to have women’s suffrage at the time. Sutherland and his wife, Rosamond Lee, shared a passion for protecting and expanding women’s right to vote. One legal scholar notes that “the denial of the franchise to women particularly bothered Sutherland, who considered gender discrimination illogical and undemocratic.” This pro-suffrage couple publicly spoke in favor of suffrage, held pro-suffrage meetings, and personally befriended national suffrage leaders – such as Alice Paul – while aiding their efforts.
As a U.S. senator, Sutherland introduced resolutions twice – in 1914 and 1916 – proposing to submit an amendment to the states for ratification to amend the U.S. Constitution to extend women’s suffrage nationwide. Former Utah Supreme Court Chief Justice Christine Durham notes this legislation was “ultimately responsible for the Nineteenth Amendment to the United States Constitution.” Sutherland argued publicly inside and outside the U.S. Senate in favor of the suffrage amendment.
While on the Supreme Court, “Sutherland wrote the rhetorically strongest defenses of women’s right to legal equality of any Supreme Court Justice until the 1960s,” according to another legal scholar. Sutherland’s 1923 majority opinion in Adkins v. Children’s Hospital argued for the legal equality of men and women:
In view of the great, not to say, revolutionary changes which have taken place since that utterance in the contractual, political and civil status of women culminating in the Nineteenth Amendment it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. … [W]e cannot accept the doctrine that women of mature age sui juris require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances.
This opinion was praised by Alice Paul as women’s “Magna Carta.” The Supreme Court overruled Sutherland’s opinion in 1937 – a majority opinion that drew a strong dissent from Sutherland. But, Durham said, “Alice Paul and Justice Sutherland have had the last laugh. Their views have prevailed and the idea that laws must treat men and women equally is now firmly embedded in American constitutional jurisprudence.”
Appeal to common sense: Sutherland’s thinking on women’s rights
Widely respected jurist, legal thinker and Utahn Thomas Griffith recently wrote that our “system of government … will only succeed when citizens seek to moderate and to unify on contested issues.” That describes Sutherland’s thinking on women’s suffrage. Sutherland’s public speeches illustrate a conservative foundation to his support of women’s right to vote, moderated by occasional progressive embellishments and his heavy reliance on commonsense reasoning.
A 1915 speech at a pro-suffrage event organized by Alice Paul at the Belasco Theater in Washington, D.C., illuminates the conservative foundations of his support for women’s right to vote. Sutherland grounded his views in practical reality, not theoretical abstractions. “I am a believer in the fundamental right of women to vote,” said Sutherland, “not as a matter of theory, or speculation, but as a matter of earnest conviction as a result of years of practical observation.”
Earlier in the speech, Sutherland explained the source of that experience:
The fallacy of the reasons which have heretofore been urged against the right of women to vote has been conclusively exposed by a light far stronger and more illuminating than any argument of mind could possibly be, and that is by the light of practical experience. Twelve states in the Union have actually tried out the experiment of Woman Suffrage – some of them for a great many years. … Woman Suffrage, therefore, has ceased to be a theory to be accepted or rejected according to the impression which the predications and speculations of its friends and its enemies may make upon our minds, and has become a fact which, like any other fact, is to be judged and approved or disapproved according to the results which it has brought about.
Sutherland further illustrated his conservative mindset in favor of women’s suffrage in a 1916 Senate floor speech in which he turned to the nation’s framers for support of his proposal to amend the U.S. Constitution:
The Constitution provides very definitely for its own amendment. The power of Congress to propose and of three-fourths of the States to adopt includes amendment of every conceivable character. The power is plenary and without qualification except in one particular. … This single exception serves to emphasize the fact, if emphasis were necessary, that the framers deliberately intended that the Constitution should be open to amendment in every other conceivable respect.
However, the conservative infrastructure of Sutherland’s thinking on women’s suffrage was added to by a willingness to question what he saw as unjust and unreasonable historical tradition – an impulse often associated with progressive thinking. In a 1914 U.S. Senate floor speech in favor of his suffrage amendment legislation, Sutherland argued:
Error has a pernicious habit of sometimes clothing itself in such seemly garb that it is passed along without any question from age to age until some doubting hand strips off the disguise and exposes the deception. One of these respectably clothed traditions which we are just now engaged in overhauling is that which teaches that women are either too good or too bad or too weak or too busy in the kitchen to participate in the tribal councils.
Sutherland’s thinking on women’s suffrage consistently relied on commonsense reasoning. In his 1914 Senate speech, Sutherland exposed fundamental flaws with ideas of male superiority:
Have women in the aggregate less native intelligence than men? Have they less desire for social and governmental righteousness? Are they less patriotic? Are they less interested in the common welfare? Have they less at stake? If not, wherein lies the superiority of the male portion of the population? …
We are told that if women are given the ballot the household will suffer. … The obvious retort is that if the workshop, and the farm, and the mine, and the office, and the countingroom continue in operation, notwithstanding the responsibility which now rests upon the male voter, the household may survive even if the women of the country study politics and take a few minutes off on election day to vote.
He gave further practical reasoning for women’s right to vote:
To my own mind the most convincing argument for the political enfranchisement of women is the absence of any persuasive arguments against it. If it be right to extend the voting privilege to all sorts and conditions of men, I am not quite able to see the justice of denying the same right to all sorts and conditions of women. …
I give my assent to woman suffrage because, as the matter appeals to me, there is no justification for denying to half our citizens the right to participate in the operations of a government which is as much their government as it is ours upon the sole ground that they happen to be born women instead of men.
This appeal to common sense continued in his Belasco Theater speech in 1915:
Women on average are as intelligent as men, as patriotic as men, as anxious for good government as men; they are affected by good or bad laws the same as men, and to deprive them of the right to participate in the government is to make an arbitrary division of the citizenship of the country upon the sole ground that one class if made up of men, and should therefore rule, and the other class is made up of women, who should, therefore, be ruled.
Further pragmatic arguments also ran throughout Sutherland’s 1916 Senate speech in favor of his proposed suffrage amendment:
The premises by which we establish the justice and wisdom of democracy, and consequently the justice and wisdom of universal manhood suffrage, likewise establish the justice and wisdom of universal womanhood suffrage. Any argument which I may use to justify my own right to vote justifies, it seems to me, the right of my wife, sister, mother and daughter to exercise the same right. …
The sooner [women’s suffrage] becomes an accomplished fact, the sooner the splendid, patriotic, intelligent women of the country will be enabled to devote their energies to helping us solve the perplexing social and governmental problems with which we are confronted, instead of expending these energies in the passionate struggle to secure the right to give us this help.
Relevance of Sutherland today
George Sutherland lived and served as a U.S. senator and Supreme Court justice at a time in which the idea of legal equality between women and men, taken for granted today, was controversial and hotly disputed. How he arrived at and argued for his position on women’s suffrage offers a lesson to us today in how to constructively and impactfully address controversial policy questions: (1) Follow your principles as the foundation of your thinking, (2) moderate extremism by adapting legitimate elements of different ways of thinking, and (3) seek unity through commonsense reasoning.
Following the example of one of Utah’s most historically impactful public servants and one of America’s important advocates for women’s rights, we too may find that we can arrive at sound solutions to policy problems that will remain standing nearly a century later.
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