Husbands & wives, dangerousness & dependence: Public pensions in the 1860s-1920s

Denver University Law Review

Volumn 75, Issue 4, 1998, Pages 1181-1213

  Sterett, Susan ^a  

^a UNIVERSITY OF DENVER   (United States)

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EID: 11544267992     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (245)

1. See Megan J. McClintock, Civil War Pensions and the Reconstruction of Union Families, 83 J. AM. HIST. 456, 458 (1996).
2. See generally ROBIN EINHORN, PROPERTY RULES: POLITICAL ECONOMY IN CHICAGO 1833-1872 (1991) (discussing the evolvement of Chicago's economic policy).
3. Adrienne Rich, Compulsory Heterosexuality and Lesbian Existence, in THE LESBIAN AND GAY STUDIES READER 227 (Henry Abelove et al. eds., 1993).
4. See id. at 239.
5. See id. at 229.
6. See id. at 235.
7. See id. at 241.
8. See id. at 231.
9. Cf. Judith Butler, Imitation & Gender Insubordination, in INSIDE/OUT: LESBIAN THEORIES, GAY THEORIES 13 (Diana Fuss ed., 1991) (discussing the impossibility of defining "lesbian"); Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C. L. REV. 1501, 1599-1601 (pointing out the limitations of defining homosexuality by sexual desire).
10. Cf. Judith Butler, Imitation & Gender Insubordination, in INSIDE/OUT: LESBIAN THEORIES, GAY THEORIES 13 (Diana Fuss ed., 1991) (discussing the impossibility of defining "lesbian"); Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C. L. REV. 1501, 1599-1601 (pointing out the limitations of defining homosexuality by sexual desire).
11. See, e.g., IN AND OUT (Paramount 1997) (exploring the implications of stereotypically gay behavior); see also Ellen (ABC television broadcast, 1997) (drawing attention to lesbian existence).
12. All Things Considered: Gay Adoption (National Public Radio broadcast, Dec. 19, 1997) (transcript information available at 〈http://www.npr.org/inside/transcripts〉 (visited Sept. 4, 1998)) [hereinafter Gay Adoption].
13. See id.
14. See id.
15. See id.
16. See id.
17. See id.
18. See id.
19. See Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994).
20. Id. at 219.
21. The ECJ is a supranational court that judges disputes arising within the fifteen-member European Union under European Community law. See SALLY J. KENNEY, FOR WHOSE PROTECTION? REPRODUCTIVE HAZARDS AND EXCLUSIONARY POLICIES IN THE UNITED STATES AND BRITIAN 78-83 (1992) (discussing the impact of the ECJ on British law). The Council of Ministers, which includes a representative from each member state, outlines directives that set objectives for the Union as a whole. See id. at 79-80. Directives allow member states choices in how to meet objectives. See id. The Equal Treatment Directive was enacted in 1976. See id. at 80.
22. See Case C-13/94, P v. S, 2 C.M.L.R. 247 (1996).
23. See R v. Secretary of State for Defence, ex parte Perkins, [1997] I.R.L.R. 297.
24. See Koppelman, supra note 18, at 202-03 (discussing how discrimination against homosexuals is part of the larger gender discrimination).
25. Id. at 245-16.
26. Id. at 235.
27. 490 U.S. 228 (1989) (superseded by 42 U.S.C. § 2000e-2 (1994) (making it unlawful for employers to classify employees or applicants for employment by race, color, religion, sex, or national origin in a way that would deprive that person of employment or adversely affect his or her status as an employee)).
28. Price Waterhouse, 490 U.S. at 235.
29. See id. at 251 (stating that stereotyping puts women in the intolerable position of never being able to advance).
30. See generally Suzanna Danuta Walters, From Here to Queer: Radical Feminism, Post-modernism, and the Lesbian Menace (Or, Why Can't a Woman Be More Like a Fag?), 21 SIGNS 830 (1996) (discussing the definitions of gay/lesbian issues and their effect).
31. See id. at 844-45.
32. See id. at 832-33.
33. Cf. Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1 (1995) (illustrating that how effeminate men are regarded in society impacts the struggle against gender discrimination in general); Francisco Valdes, Sex and Race in Queer Legal Culture: Ruminations on Identities & Inter-Connectivities, 5 S. CAL. REV. L. & WOMEN'S STUD. 25, 30 (1995) (arguing that although the author is physically excluded from the category of lesbian, he includes himself to "poke at the sex/gender essentialisms that rigidly and absurdly confine us all").
34. Cf. Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1 (1995) (illustrating that how effeminate men are regarded in society impacts the struggle against gender discrimination in general); Francisco Valdes, Sex and Race in Queer Legal Culture: Ruminations on Identities & Inter-Connectivities, 5 S. CAL. REV. L. & WOMEN'S STUD. 25, 30 (1995) (arguing that although the author is physically excluded from the category of lesbian, he includes himself to "poke at the sex/gender essentialisms that rigidly and absurdly confine us all").
35. See Eve Kosofsky Sedgwick, Epistemology of the Closet, in THE LESBIAN AND GAY STUDIES READER, supra note 3, at 45, 55.
36. See generally id. (discussing the concept of homosexuality through literature and culture).
37. See Celia Kitzinger & Susan Wilkinson, Virgins and Queers Rehabilitating Heterosexuality?, 8 GENDER & SOC'Y 444, 445, 457 (1994).
38. See id. at 459.
39. See Butler, supra note 9, at 21.
40. Id. at 17.
41. Id.
42. Id. at 20.
43. Id. at 20-21.
44. Lisa Duggan, Queering the State, 39 SOC. TEXT 1 (1994), reprinted in SEX WARS: SEXUAL DISSENT AND POLITICAL CULTURE 179, 185 (Lisa Duggan & Nan D. Hunter eds., 1995) (subsequent citations to Queering the State will reference the article as reprinted in SEX WARS).
45. Lisa Duggan, Queering the State, 39 SOC. TEXT 1 (1994), reprinted in SEX WARS: SEXUAL DISSENT AND POLITICAL CULTURE 179, 185 (Lisa Duggan & Nan D. Hunter eds., 1995) (subsequent citations to Queering the State will reference the article as reprinted in SEX WARS).
46. See id. at 186.
47. See Kitzinger & Wilkinson, supra note 35, at 458-59.
48. Butler, supra note 9, at 21.
49. See generally Richard Collier, "The Art of Living the Married Life": Representations of Male Heterosexuality in Law, 1 SOC. & LEGAL STUD. 543 (1992) (discussing how the law has used marriage to define a "natural" sexual intercourse); Elizabeth M. Iglesias, Rape, Race, and Representation: the Power of Discourse, Discourses of Power, and the Reconstruction of Heterosexuality, 49 VAND. L. REV. 869 (1996) (discussing how society defines rape and its impact on women's sexuality).
50. See generally Richard Collier, "The Art of Living the Married Life": Representations of Male Heterosexuality in Law, 1 SOC. & LEGAL STUD. 543 (1992) (discussing how the law has used marriage to define a "natural" sexual intercourse); Elizabeth M. Iglesias, Rape, Race, and Representation: the Power of Discourse, Discourses of Power, and the Reconstruction of Heterosexuality, 49 VAND. L. REV. 869 (1996) (discussing how society defines rape and its impact on women's sexuality).
51. See Butler, supra note 9, at 21 (addressing "compulsory" gender norms).
52. Indeed, normative heterosexuality is well-established enough that I doubt it would be possible to find a case of a man even trying to claim benefits on the basis of his affiliation with another man, separate from being a son or father; particularly since marriage or something that mimicked marriage was required to claim benefits and marriage was defined as a heterosexual union.
53. See Butler, supra note 9, at 21.
54. I am grateful to Eric Heinze for bringing this point to my attention.
55. See. e.g., ELIZABETH V. SPELMAN, INESSENTIAL WOMAN (1990) (recognizing that Western philosophy concerning "womanness" does not consider the vast, inherent differences of women).
56. See, e.g., PATRICIA HILL COLLINS, BLACK FEMINIST THOUGHT (1991) (centering the analysis deliberately on African-American women).
57. Eric Heinze, Discourses of Sex: Classical, Modernist and Post-Modernist, 67 NORDIC J. INT'L L. 37, 72 (1998).
58. See id. at 68.
59. See id. at 40.
60. Id. at 48-49.
61. Id. at 40.
62. Id. at 62-67.
63. Id. at 56-60.
64. Id. at 73-75.
65. Donna J. Haraway, Reading Buchi Emecheta: Contests for "Women's Experience" in Women's Studies, in SIMIANS, CYBORGS AND WOMEN 109, 111-13 (1991).
66. JOHN D'EMILIO & ESTELLE B. FREEDMAN, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA 121 (1988); see also id. at 128-29 (discussing Walt Whitman as an example of nineteenth-century romance between same sex friends).
67. See id. at 121.
68. Id. at 124-27.
69. See id. at 127.
70. Butler, supra note 9, at 18-21.
71. See D'EMILIO & FREEDMAN, supra note 62, at 121, 123.
72. See id. at 124-25.
73. See Valentine v. Tantum, 32 A. 531, 531-32 (Del. Super. Ct. 1886), cited in Amy Dru Stanley, Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation, 75 J. AM. HIST. 471, 471 (1988) (outlining the state of women's property rights at common law prior to the enactment of the "Married Woman's Act" and noting that married women had no right to contract at common law).
74. See, e.g., Act to Protect the Rights of Married Women, 1861 Colo. Sess. Laws 152, 152 ("[A]ny married woman, while married, may bargain, sell and convey her personal and real property, and enter into any contracts in reference to the same as if she were sole."); see also Reva B. Siegel, Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 YALE L.J. 1073, 1083-89 (1994) (discussing state Married Women's Acts); Stanley, supra note 69, at 481-82 (discussing state Married Women's Act).
75. See Stanley, supra note 69, at 495-96 & n.58 (citing Burke v. Cole, 97 Mass. 113, 114 (1867), and Brooks v. Schwerin, 54 N.Y. 343, 348-49 (1873)).
76. See id. at 496-97.
77. Id. at 496.
78. See Siegel, supra note 70, at 1120-22, 1127-29.
79. Practices varied by ethnicity and region of the country. For discussions of women at work, see THOMAS DUBLIN, TRANSFORMING WOMEN'S WORK: NEW ENGLAND LIVES IN THE INDUSTRIAL REVOLUTION (1994) (discussing the effect of the Industrial Revolution on women's work); ALICE KESSLER-HARRIS, A WOMAN'S WAGE: HISTORICAL MEANINGS AND SOCIAL CONSEQUENCES (1990) (discussing wages as an interpreter and consequence of gender inequality); Elizabeth H. Pleck, A Mother's Wages: Income Earning Among Married Italian and Black Women, 1896-1911, in A HERITAGE OF HER OWN (Nancy F. Cott & Elizabeth H. Pleck eds., 1979) (discussing the historical differences in the workplace between women of different ethnic groups).
80. Practices varied by ethnicity and region of the country. For discussions of women at work, see THOMAS DUBLIN, TRANSFORMING WOMEN'S WORK: NEW ENGLAND LIVES IN THE INDUSTRIAL REVOLUTION (1994) (discussing the effect of the Industrial Revolution on women's work); ALICE KESSLER-HARRIS, A WOMAN'S WAGE: HISTORICAL MEANINGS AND SOCIAL CONSEQUENCES (1990) (discussing wages as an interpreter and consequence of gender inequality); Elizabeth H. Pleck, A Mother's Wages: Income Earning Among Married Italian and Black Women, 1896-1911, in A HERITAGE OF HER OWN (Nancy F. Cott & Elizabeth H. Pleck eds., 1979) (discussing the historical differences in the workplace between women of different ethnic groups).
81. Practices varied by ethnicity and region of the country. For discussions of women at work, see THOMAS DUBLIN, TRANSFORMING WOMEN'S WORK: NEW ENGLAND LIVES IN THE INDUSTRIAL REVOLUTION (1994) (discussing the effect of the Industrial Revolution on women's work); ALICE KESSLER-HARRIS, A WOMAN'S WAGE: HISTORICAL MEANINGS AND SOCIAL CONSEQUENCES (1990) (discussing wages as an interpreter and consequence of gender inequality); Elizabeth H. Pleck, A Mother's Wages: Income Earning Among Married Italian and Black Women, 1896-1911, in A HERITAGE OF HER OWN (Nancy F. Cott & Elizabeth H. Pleck eds., 1979) (discussing the historical differences in the workplace between women of different ethnic groups).
82. See BLANCHE WIESEN COOK, 1 ELEANOR ROOSEVELT 339 (1992). John D'Emilio and Estelle Freedman discuss the late-nineteenth-century emergence of educated women who could afford to live apart from men, and did. D'EMILIO & FREEDMAN, supra note 62, at 188-97.
83. LINDA GORDON, PITIED BUT NOT ENTITLED 43, 113 (1993).
84. See Kitzinger & Wilkinson, supra note 35, at 454-57. However, cities have long had substantial working class lesbian communities even given the difficult circumstances of discrimination. See ELIZABETH LAPOVSKY KENNEDY & MADELINE D. DAVIS, BOOTS OF LEATHER, SLIPPERS OF GOLD: THE HISTORY OF A LESBIAN COMMUNITY (1994) (studying Buffalo, New York).
85. See discussion infra notes 228-29 and accompanying text (discussing the intrusive supervision of Civil War pensions).
86. See KESSLER-HARRIS, supra note 75, at 8-9.
87. See discussion infra Parts IV-VI.
88. See, e.g., Trustees of Exempt Firemen's Benevolent Fund v. Roome, 93 N.Y. 313 (1883).
89. THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 107 (1992).
90. Cf. Susan Sterett, Serving the State: Consitutionalism and Social Spending, 1860s-1920s, 22 L. & SOC. INQUIRY 311, 345 (1994) (discussing that indigence was the only consideration when determining whether or not a mother should receive a pension).
91. See, e.g., Fire Dep't v. Noble, 3 E.D. Smith 440, 451 (N.Y. Ct. C.P. 1854) (evaluating firemen's pension under N.Y. CONST. art. I, § 6); see also infra Part V (addressing the constitutionality of pensions).
92. U.S. CONST. amend. XIV, § 1 ("[N]or shall any state deprive any person of life, liberty, or property, without due process of law . . . .").
93. See Loan Ass'n v. Topeka, 87 U.S. 655, 664-65 (1874).
94. See Loan Ass'n, 87 U.S. at 662-67.
95. THOMAS M. COOLEY, A TREATISE ON THE LAW OF TAXATION 100 (1876).
96. Id. at 73-74, 101.
97. See LOUIS HARTZ, ECONOMIC POLICY AND DEMOCRATIC THOUGHT 123-28 (1948) (discussing the development of state constitutional provisions); see also Sharpless v. Mayor of Philadelphia, 21 Pa. 147 (1853) (allowing local governmental investment upon state legislative authorization); HARTZ, supra, at 113-23 (discussing Sharpless and noting that this decision provided the impetus for the amendment of the Pennsylvania Constitution). For a discussion of conflicts over railroads and American economic development, see GERALD BERK, ALTERNATIVE TRACKS (1992).
98. See LOUIS HARTZ, ECONOMIC POLICY AND DEMOCRATIC THOUGHT 123-28 (1948) (discussing the development of state constitutional provisions); see also Sharpless v. Mayor of Philadelphia, 21 Pa. 147 (1853) (allowing local governmental investment upon state legislative authorization); HARTZ, supra, at 113-23 (discussing Sharpless and noting that this decision provided the impetus for the amendment of the Pennsylvania Constitution). For a discussion of conflicts over railroads and American economic development, see GERALD BERK, ALTERNATIVE TRACKS (1992).
99. McClintock, supra note 1.
100. See discussion infra Part IV (discussing the work of Megan J. McClintock on Civil War pensions to discuss the relationship between pensions and perceived behaviorial patterns within marriages).
101. See WILLIAM H. GLASSON, FEDERAL MILITARY PENSIONS IN THE UNITED STATES 9-119 (David Kinley ed., 1918) (providing a thorough analysis of military pensions from the colonial times through the Civil War); WILLIAM H. GLASSON, HISTORY OF MILITARY PENSION LEGISLATION IN THE UNITED STATES 1-68 (1900) (discussing pre-Civil War pensions); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 105 (1992) (noting the expansion of the the use of pensions from the time of the American Revolution to the Civil War).
102. See WILLIAM H. GLASSON, FEDERAL MILITARY PENSIONS IN THE UNITED STATES 9-119 (David Kinley ed., 1918) (providing a thorough analysis of military pensions from the colonial times through the Civil War); WILLIAM H. GLASSON, HISTORY OF MILITARY PENSION LEGISLATION IN THE UNITED STATES 1-68 (1900) (discussing pre-Civil War pensions); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 105 (1992) (noting the expansion of the the use of pensions from the time of the American Revolution to the Civil War).
103. See WILLIAM H. GLASSON, FEDERAL MILITARY PENSIONS IN THE UNITED STATES 9-119 (David Kinley ed., 1918) (providing a thorough analysis of military pensions from the colonial times through the Civil War); WILLIAM H. GLASSON, HISTORY OF MILITARY PENSION LEGISLATION IN THE UNITED STATES 1-68 (1900) (discussing pre-Civil War pensions); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 105 (1992) (noting the expansion of the the use of pensions from the time of the American Revolution to the Civil War).
104. See United States v. Hall, 98 U.S. 343, 351 (1878) (recognizing the constitutionality of military pensions, in part, through the government's power to declare war, U.S. CONST. art I, § 8, cl. 11, and the power to "raise and support Armies," id. cl. 12); see also COOLEY, supra note 89, at 74, 99-100.
105. See, e.g., Mead v. Acton, 139 Mass. 341 (1885); Kelly v. Marshall, 69 Pa. 319 (1871); Hilbish v. Catherman, 14 N.Y. 154 (1870); Booth v. Town of Woodbury, 32 Conn. 118 (1864); Tyson v. School Dirs., 51 Pa. 9 (1865).
106. Brodhead v. Milwaukee, 19 Wis. 658 (1865). In writing for the majority, Chief Justice Dixon stated: I think the consideration of gratitude alone to the soldier for his services, be he volunteer, substituted or drafted man, will sustain a tax for bounty money to be paid to him or his family. Certainly no stronger consideration of gratitude can possibly exist than that which arises from the hardships, privations and dangers which attend the citizen in the military service of his country . . . . Who will say that the legislature may not, in consideration of such services . . . give to the soldier or his family a suitable bounty after his enlistment, or even after his term of service has expired? I certainly cannot. Brodhead, 19 Wis. at 687.
107. 98 U.S. 343 (1878).
108. Hall, 98 U.S. at 345-51.
109. Id. at 351; see U.S. CONST. art I, § 8, cl. 11 ("Congress shall have power . . . [t]o declare War . . . .").
110. Hall, 98 U.S. at 351; see U.S. CONST. art I, § 8, cl. 12 ("Congress shall have power . . . [t]o raise and support Armies . . . .").
111. Hall, 98 U.S. at 351; see U.S. CONST. art I, § 8, cl. 18 ("Congress shall have power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .").
112. Hall, 98 U.S. at 346-51. As stated by Justice Clifford: Power to grant pensions is not controverted, nor can it well be, as it was exercised by the States and by the Continental Congress during the war of the Revolution; and the exercise of the power is coeval with the organization of the government under the present Constitution, and has been continued without interruption or question to the present time. Id. at 346.
113. Id. at 346, 350-51.
114. See id. at 351.
115. Id.
116. Id.
117. See, e.g., Booth v. Town of Woodbury, 32 Conn. 118, 119 (1864) (adjudging the constitutionality of using town funds in establishing bounties to assist in satisfying the town conscription obligations); see also Hilbrish v. Catherman, 64 Pa. 154, 158 (1870).
118. See, e.g., Tyson v. School Dirs., 51 Pa. 9, 10-11 (1865) (discussing Halifax township legislation establishing a bounty association and finding an act calling for the reimbursement of funds expended by the bounty association unconstitutional).
119. See COOLEY, supra note 89, at 76-83.
120. Id. at 100.
121. Beach v. Bradstreet, 82 A. 1030, 1032-34 (Conn. 1912).
122. 157 S.W. 1084 (Ky. 1913).
123. Bosworth, 157 S.W. at 1088 ("[A] tax is levied for public purposes [and therefore satisfies constitutional requirements] where the money is used to pay a pension granted in consideration of public services.").
124. Id. at 1086 (discussing John Brown's raid on Harper's Ferry).
125. Id. at 1085-87.
126. 60 U.S. 393 (1856).
127. Bosworth, 157 S.W. at 1087.
128. Id.
129. Id. at 1086 (arguing that John Brown's raid on Harper's Ferry "deeply stirred the South, for the defenseless women and children would be the first to suffer").
130. Id. at 1088.
131. In dissent, Justice Lassing noted: I concede that the Confederate soldiers were brave men, and that they fought with a courage and determination that challenged the admiration of the civilized world; but by the arbitrament of the sword every principle for with they contended was decided against them. The integrity of the Union was preserved. While theirs was a brave, gallant, and heroic fight, I cannot bring myself to believe that in their struggle for the lost cause they rendered either the national or the state government a "public service" within the meaning of these words as found in the Bill of Rights. Id. at 1088 (Lassing, J., dissenting).
132. JUDITH LEWIS HERMAN, TRAUMA AND RECOVERY 7-32 (1992).
133. PAT BARKER, REGENERATION 107-08 (1993).
134. McClintock, supra note 1, at 456-58.
135. Id. at 460. This changed with the realization that the war would not be ended upon a single Union victory, but upon the "'complete conquest' of the South." Id. (quoting General Ulysses S. Grant on his impressions after the Battle of Shiloh).
136. Id. at 461.
137. Id.
138. Id.
139. Id. at 463 & n.15 (citing Act of July 14, 1862, ch. 166, § 2, 12 Stat. 566, 567). Section 2 of the Act of July 14, 1862 stated: [I]f any officer or other person named in [section one] has died . . . or shall hereafter die, by reason of any wound received or disease contracted while in the service of the United States, and in the line of duty, his widow, or, if there be no widow, his child or children under sixteen years of age, shall be entitled to receive the same pension as the husband or father would have been entitled to . . . to commence from the death of the husband or father, and to continue to the widow during her widowhood, or to the child or children until they severally attain to the age of sixteen years . . . . Act of July 14, 1862, ch. 166, § 2, 12 Stat. 566, 567; see also id. § 3 (extending pension benefits to dependant mothers, subject to some constraints, when a deceased serviceman did not leave a widow nor legitimate children); id. § 4 (extending pension benefits to dependant, orphaned sisters when a deceased serviceman did not leave a widow, legitimate children, nor a mother).
140. McClintock, supra note 1, at 463 (citing Act of June 6, 1866, ch. 106, § 12, 14 Stat. 56, 58 (amending the Act of July 14, 1862, ch. 166, § 4, 12 Stat. 566, 567-68) (extending pension benefits to dependent fathers and brothers of deceased servicemen)).
141. Id. at 463 (citing Act of June 6, 1866, ch. 106, 14 Stat. 56; Act of March 3, 1873, ch. 234, 17 Stat. 566; Act of June 27, 1890, ch. 634, 26 Stat. 182 (relaxing evidentiary requirements for proving pension eligibility)).
142. Id. at 474-79 (discussing specific examples of state supervision of morality-based pension requirements).
143. Id. at 467.
144. Id.
145. Cf. id. at 467 & nn.25-26 (providing a number of examples of pension file reviews).
146. Id. at 469.
147. KESSLER-HARRIS, supra note 75; Joellen Lind, Dominance and Democracy: The Legacy of Woman Suffrage of the Voting Right, 5 UCLA WOMEN'S L.J. 103, 135 (1994).
148. See McClintock, supra note 1, at 469.
149. Id.
150. Id. at 468 (citing Act of March 3, 1873, ch. 234, § 13, 17 Stat. 566, 571). As stated by section 13 of the 1873 act: [A] mother shall be assumed to have been dependent upon her son . . . if, at the date of his death, she had no other adequate means of support than the ordinary proceeds of her own manual labor and the contributions of said son or of any other persons not legally bound to aid in her support; and if, by actual contributions or in any other way, the son had recognized his obligations to aid in support of said mother, or was by law bound to such support, and that a father or a minor brother or sister shall in like manner and under like conditions, be assumed to have been dependent, except that the income which was derived or derivable from his actual or possible manual labor shall be taken into account in estimating a father's means of independent support . . . . Act of March 3, 1873, ch. 234, § 13, 17 Stat. 566, 571. For example, one woman received a pension despite the existence of only a single instance of support by her son in two years because that son wrote a letter evidencing his desire to provide support. See McClintock, supra note 1, at 468-69 & n.31 (describing the situation of Mary Harth).
151. See McClintock, supra note 1, at 470.
152. Id. at 470-71.
153. Id. at 471 (citing Act of June 27, 1890, ch. 634, § 1, 26 Stat. 182, 182). Section 1 of the 1890 Act allowed the awarding of pensions to parents of deceased servicemen upon a showing that no widows or minor children were left and the parents were "without other present means of support than their own manual labor or the contributions of others not legally bound for their support." Act of June 27, 1890, ch. 634, § 1, 26 Stat. 182, 182.
154. Id. at 471 (citing Notes of a Conference with Hon. William W. Dudley, Commissioner of Pensions, H.R. MISC. DOC. NO. 48-43, at 24-25 (1884)). William W. Dudley, the Commissioner of Pensions in 1884, argued: [S]o far as determining the question of dependence is concerned, the law in its present form works great hardship in many deserving cases . . . . Now, I think the spirit of the pension law ought to reach far enough to provide for a mother who afterwards became dependent upon the labor of her own hands, or the assistance of others, upon the presumption that her son would have supported her had he lived. . . . [A]s the Government has taken him away I hold that the Government ought to try to make up, to some extent at least, to the dependent parent for the loss. Notes of a Conference with Hon. William W. Dudley, Commissioner of Pensions, H.R. MISC. DOC. NO. 48-43, at 24-25 (1884).
155. McClintock, supra note 1, at 471.
156. Id. at 472. While the Bureau of Pensions preferred marriage records to substantiate marriage claims, they accepted other forms of evidence including witness testimony, child baptism records, or affidavits by marriage officiating individuals. Id. at 472 & n.39 (citing a number of congressional documents addressing pension evidentiary standards).
157. Id. at 471-73.
158. Id. at 476-77 (citing Report of the Commissioner of Pensions for the Year 1868, H.R. EXEC. DOC. 40-1, at 422 (3d Sess. 1868)). The Commissioner of Pensions noted: Serious abuses of privilege and flagrant violations of morality on the part of claimants under the present system exist, which seem to require that the Commissioner be clothed with discretionary power to adopt such means as may most certainly vindicate the purposes of equal justice and good morals. . . . . Widows, in increasing numbers, cohabit without marriage, refusing this solemn legal sanction for fear of losing their pensions thereby. Others live openly in prostitution for the same object. Thus is the government placed unwittingly in the strange attitude of offering a premium upon immorality, of which it should be relieved. Report of the Commissioner of Pensions for the Year 1868, H.R. EXEC. DOC. 40-1, at 422, 450-51 (3d Sess. 1868).
159. See McClintock, supra note 1, at 476-77 (discussing the perceived need for and early attempts at restricting pensions to widows on moral grounds).
160. Id. at 472 & n.41 (citing files from the Bureau of Pensions).
161. Id. ("By accepting cohabitation as proof of valid marriages, pension administrators were following the lead of the antebellum judiciary . . . ." (citing MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA 75, 79-80 (1985))).
162. Id. at 474.
163. Id. at 473 (describing the situation of Dilly Bostick).
164. For a fascinating discussion of what constituted evidence of a marriage among slaves, see Lea Vandervelde & Sandhya Subramanian, Mrs. Dred Scott, 106 YALE L.J. 1033, 1103-10 (1997).
165. McClintock, supra note 1, at 474.
166. Id. at 474-75 (citing documents in the pension file of Annice Morgan).
167. Id. at 475.
168. Id.
169. Id.
170. Id.
171. Id. As a result of finding that the Morgan-Jackson union represented the legitimate marriage, Morgan's pension claim, based upon the Morgan-Lemuel relationship, was dropped by the pension examiner. Id.
172. Id. at 476 ("[B]ecause she acted like a wife, pension administrators restored her pension.").
173. Id. at 475 & n.46 (citing documents of the Bureau of Pensions and records of the Veterans' Administration).
174. Id. at 476 (discussing the situation of Kate Staplin, as evidenced in Staplin's pension file).
175. See Butler, supra note 9, at 21.
176. McClintock, supra note 1, at 476-77; see, e.g., Act of July 4, 1864, ch. 247, § 7, 13 Stat. 387, 388 ("[O]n the remarriage of any widow receiving a pension, such pension shall terminate, and shall not be renewed should she again become a widow.").
177. McClintock, supra note 1, at 477 & n.50 (citing CONG. GLOBE, 40 Cong., 3d Sess. 678 (1869) (statement of Rep. Perham); id. at 679 (statement of Rep. Boyden); id. at 641 (statement of Rep. Schenck); id. at 641 (statement of Ebon Ingersoll)).
178. Id. at 477 (citing Act of Aug. 7, 1882, ch. 438, 22 Stat. 345, 345 (stating that "open and notorious adulterous cohabitation" will be grounds for termination of pension benefits)).
179. Supranational courts have in recent years addressed what constitutes a marriage. The European Court of Human Rights (ECHR) judges disputes under the European Convention on Human Rights that arise in countries that are signatories to the Convention. The Convention includes a right to family life, and under that right applicants have challenged laws that in effect forbid transsexuals from marrying based on birth registration and prohibitions on same sex marriage. See Cossey v. United Kingdom, 184 Eur. Ct. H.R. (ser. A) at 5 (1990).
180. John M. Finnis, Law, Morality, and "Sexual Orientation," 9 NOTRE DAME J.L. ETHICS & PUB. POL'Y 11, 27-29 (1995).
181. Id. at 27.
182. Id.
183. Id. at 27-29, 30.
184. See Gay Adoption, supra note 11.
185. See Finnis, supra note 171, at 27-30 (addressing the teleology of marriage in part through an examination of ancient Greek thoughts on homosexuality).
186. See McClintock, supra note 1, at 471-79 (discussing mid-nineteenth-century perceptions of marriage as articulated by Congress and enforced by the Bureau of Pensions).
187. See ERIC MONKKONEN, POLICE IN URBAN AMERICA, 1860-1920, at 31 (1981).
188. See H.L. Wilgus, Constitutionality of Teachers' Pensions Legislation, 12 MICH. L. REV. 27, 31 (1913).
189. Id. at 32.
190. Id. at 31-32.
191. Act of March 30, 1849, ch. 178, 1849 N.Y. Laws 239. Previously, the state collected two percent of the foreign insurance premiums, but the collected money was paid directly to the state. Wilgus, supra note 179, at 32.
192. 3 E.D. Smith 440 (N.Y. Ct. C.P. 1854); see also Fire Dep't v. Wright, 3 E.D. Smith 453 (N.Y. Ct. C.P. 1854) (utilizing the Noble decision).
193. See Noble, 3 E.D. Smith at 453.
194. Id. at 451-52.
195. See Firemen's Benevolent Ass'n v. Lounsbury, 21 Ill. 511, 511-12 (1859) (describing the Act of June 21, 1852).
196. 21 Ill. 511 (1859).
197. Lounsbury, 21 Ill. at 515-16.
198. EINHORN, supra note 2, at 25-26, 149-50; see Lounsbury, 21 Ill. at 515-16.
199. See Lounsbury, 21 Ill. at 513; cf. Noble, 3 E.D. Smith at 451-52.
200. EINHORN, supra note 2, at 149-50.
201. Id. at 224.
202. See. e.g., Trustees of the Exempt Firemen's Benevolent Fund v. Roome, 93 N.Y. 313, 319-20 (1883); see also infra note 197-199 and accompanying discussion (examining Roome).
203. See Lounsbury, 211 Ill. at 511 (discussing the constitutionality of benefit legislation, but failing to discuss the courage of firemen and hazards of service); Fire Dep't v. Noble, 3 E.D. Smith 440 (N.Y. Ct. C.P. 1854) (discussing firemen's pension issues in a very antiseptic manner).
204. Nancy Fraser & Linda Gordon, A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State, 19 SIGNS 309, 316-18 (1994).
205. See D'EMILIO & FREEDMAN, supra note 62, at 223-29.
206. 93 N.Y. 313 (1883).
207. Roome, 93 N.Y. at 313.
208. Id. at 320; see Wilgus, supra note 179, at 33.
209. See ERIC LOTT, LOVE AND THEFT 81-85 (1995); SEAN WILENTZ, CHANTS DEMOCRATIC 259-61 (1984).
210. See ERIC LOTT, LOVE AND THEFT 81-85 (1995); SEAN WILENTZ, CHANTS DEMOCRATIC 259-61 (1984).
211. LOTT, supra note 200, at 80-85.
212. Id.
213. Id. at 81.
214. See Act of July 1, 1911, 1911 ILL. LAWS 170 (amending the Act of April 29, 1887, 1887 ILL. LAWS 122, by adding section 3a which extended police pensions to police matrons); see also Lyons v. Police Pension Bd., 99 N.E. 337, 337-38 (Ill. 1912) (discussing the original Act and the amendment and finding the amendment constitutional).
215. House Firm on Changes in Police Pension Bills, ILL. ST. J., May 10, 1911, at 1; Police Pensions Hit Snag, CHI. TRIB., May 10, 1911, at 4.
216. People ex rel. Kroner v. Abbott, 113 N.E. 696, 698 (Ill. 1916).
217. Cobbs v. Home Ins. Co., 91 So. 627, 629 (Ala. Ct. App. 1921).
218. Cobbs, 91 So. at 629.
219. Id.
220. See Seth Koven, Remembering and Dismemberment: Crippled Children, Wounded Soldiers, and the Great War in Great Britain, 99 AM. HIST. REV. 1167, 1191-92 (1994) (discussing injury, war, and feminization in Britain).
221. See SKOCPOL, supra note 83, at 290.
222. Cf. ROBERT H. BREMNER, THE PUBLIC GOOD: PHILANTHROPY AND WELFARE IN THE CIVIL WAR ERA 150-53 (discussing poorhouses and other means of housing the indigent).
223. See MOLLY LADD-TAYLOR, MOTHER-WORK: WOMEN, CHILD WELFARE, AND THE STATE, 1890-1930, at 143-48 (1994).
224. See id. at 148 (noting the financial difficulties associated with the mothers' pensions); SKOCPOL, supra note 83, at 424 (noting the emergence of mothers' pensions in forty states by the year 1920).
225. See LADD-TAYLOR, supra note 213, at 135-36, 143-48; see also SKOCPOL, supra note 83, at 426 (describing the fears of Mary Richmond, a prominent charity offical, that mothers' pensions evidenced the "same mixture of motive" - payment of a debt versus charity - as experienced with soldiers' pensions). Ladd-Taylor differentiates between three groupings of early-twentieth-century advocates: sentimental maternalists, progressive maternalists, and feminists. See LADD-TAYLOR, supra note 213, at 7. In discussing women's pensions, she notes that all three groups supported the pensions, but for different reasons - sentimental maternalists sought to preserve maternal dignity, assist poor women in fulfilling parental responsibilities, and prevent juvenile delinquency; progressive maternalists viewed the pensions as a means of coping with poverty; and feminists as a means of renumeration. Id. As a result of these different rationales underlying the groups' support of mothers' pensions, the maternalists sought pension coverage only for those individuals without the "support of a male breadwinner," while the feminists argued for pension coverage for all mothers. Id.
226. See LADD-TAYLOR, supra note 213, at 138.
227. See ILL. REV. STAT. § 175 (Hurd 1912). In pertinent part, the Illinois statute, the first of its kind, stated: If the parent or parents of such dependent or neglected child are poor and unable to properly care for the said child, but are otherwise proper guardians and it is for the welfare of such child to remain at home, the court may enter an order finding such facts and fixing the amount of money necessary to enable the parent or parents to properly care for such child, and thereupon it shall be the duty of the County Board . . . to pay to such parent or parents . . . the amount so specified . . . . Id.; see also SKOCPOL, supra note 83, at 428.
228. See ILL. STAT. ANN. ch. 37, ¶ 3416(1)-(21) (Callaghan 1913-1916); see SKOCPOL, supra note 83, at 429. For example, the amended version limits pension disbursements to "[a] woman whose husband is dead or whose husband has become incapacitated for work by reason of physical or mental infirmity . . . provided such woman has had a previous residence for three years in the county . . . and is the mother of a child or children." ILL. STAT. ANN. ch. 37, ¶ 3416(2).
229. See Act of Nov. 3, 1914, 1915 Ariz. Sess. Laws 10, reprinted in State Bd. v. Buckstegge, 158 P. 837, 838 (Ariz. 1916). The Arizona law stated in part: [I]n order to care for aged people and people incapable of earning a livelihood by reason of physical infirmities, and widows or wives whose husbands are in penal institutions or insane asylums, they being mothers of children who are under the age of sixteen (16) years, a system of pensioning is hereby established. Act of Nov. 3, 1914, 1915 Ariz. Sess. Laws 10 § 2.
230. State Bd. v. Buckstegge, 158 P. 837 (Ariz. 1916).
231. Buckstegge, 158 P. at 841-42. The court also recognized that the title of the legislation submitted to voters did not adequately convey that the pension plan would supplant almshouses currently used to house the poor, in violation of the Arizona Constitution. Id. at 840-41; see ARIZ. CONST. art. IV, § 13 ("Every Act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title . . . .").
232. See Buckstegge, 158 P. at 841-42.
233. Id. at 842 (Ross, C.J.).
234. See id.
235. Compare, e.g., id. at 838-42 (addressing mothers' pensions), with Bosworth v. Harp, 157 S.W. 1084, 1085, 1087-88 (Ky. 1913) (addressing soldiers' pensions). For example, the Bosworth court, in finding that soldiers' pensions applied to soldiers fighting for the Confederacy, ended their decision with the following statement: So long as the courage of the battle field or the risking of one's life for his country is honored, and it is the policy of the state to promote the loyalty and patriotism of the people by fostering the martial spirit, such services constitute a reasonable basis for classification. The honor due to the true and the brave is not limited to those who are successful in the struggle. Greece still honors the Spartans who defended the pass at Thermopylae. The names of Wallace and his comrades are yet household words in Scotland. They who died at the Alamo are honored of all Americans. The state may show that the republic is not ungrateful to these men not only by erecting monuments to them when dead or placing flowers on their graves, but it may with equal propriety gladden their hearts while living and in their infirmity give them bread. Bosworth, 157 S.W. at 1088.
236. See Buckstegge, 158 P. at 841.
237. Brief for Appellant, State Bd. v. Buckstegge, 158 P. 837 (Ariz. 1916) (No. 1456) (on file with author).
238. See SKOCPOL, supra note 83, at 467-68.
239. See WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY 168-70 (1995) (discussing the state and protection).
240. GORDON, supra note 77, at 111-13. It was more common, however, for African American activist women to be married and have children. Id.
241. McClintock, supra note 1, at 479-80; see also discussion supra Part V (addressing pensions and the normative family through a discussion of McClintock's work on Civil War and post-Civil War pensions).
242. Sterett, supra note 84, at 315-18 (discussing women as dependents of men and recognizing this as a marker of gender, rather than sexual orientation).
243. Fraser & Gordon, supra note 195, at 316-18.
244. Trustees of the Exempt Firemen's Benevolent Fund v. City of New York, 93, N.Y. 313, 320 (1883) ("The dangers of [firefighting] were obvious, and a courage and daring which has gone into history began to leave behind it men who were maimed and crippled in the public service, and widows and orphans deprived of their natural protectors and reduced to poverty and want." (emphasis added)).
245. See discussion supra notes 18-28 and accompanying text.