Dr. Erna Scheffler - or how to burn the Patriarchy legally (with a smile)
I wanted to recycle a comment I made a while ago over on r/TwoXChromosomes, mainly because I wanted to share my cheering for an RBG-class judge (witchyness is of yet unconfirmed) in my country with you.
In West Germany there was this really weird situation where constitutionally, the post-war Grundgesetz postulated complete equality ("Men and women are equal") and yet the country failed to actually build a semblance of even legal equality.
This, shockingly, was already a big thing. When this clause was first proposed by one of the few women in the constitutional assembly in 1948 - arguing that "A woman who had stood among the rubble and replaced the man in his workplace has the moral claim to be valued like a man." - many prominent conservative figures pulled the same card they are pulling today: "Everybody accepts you as equal, we don't have to change that." A compromise was made, adding the clause to the constitution but preserving some laws till a new system of family law could be built or until 1953. Why?
Well the tacit understanding was that what happened in the family stayed in the family and if the husband decided "x" than the government didn't want to do anything about it. Women couldn't open their own bank account. Any property women had legally belonged to the man after marriage. Women could work, yes, but their husbands could legally quit their job for them. Any decisions in childcare were subject to the husbands approval. Women in public service could be let go after marriage, which is a really big thing here because public service basically means you can't really be fired generally.
Men and women were understood to be "functionally different" in their duties. Yikes.
1953 came and there was no replacement. That meant that a lot of these laws were dead over night, but that also meant that there were a lot of issues the courts couldn't handle as there was no legal basis. How did that continue?
Well first, lets talk about our heroine: Dr. Erna Scheffler. Dr. Scheffler had to go to school in the Kaiserreich and since obtaining a highschool degree at a school for girls was impossible, she had to get one by taking the exams in a boy's school without actually attending classes in 1911. She then studied law until 1914 but couldn't actually get a degree as, in the Kaiserreich, the test (a Staatsexamen, a state administered test) was only available to men. So she got a doctorate degree. In the Weimar Republic, from 1921 onwards, it was possible to take the Staatsexamen, which she did in 1922, going on to finish her (necessary) clerkships with the 2. Staatsexamen in 1925. She continued on being a lawyer until she passed the legal age for entry as judge, becoming a judges assisant in 1930 and a full blown judge in 1932.
And then the Nazis came. She lost her position due to her being part jewish and was forced to work as an accountant until the end of the war. She became a judge again in 1948. When the Supreme Court of West Germany was built in 1951, she was the only female judge in the whole court of 24 judges. She was also, tongue in cheek, regarded as an informal judge on a federal bench that her husband was a part of.
Dr. Scheffler is also said to have gleefully talked of the time her husband and her had to live in a de facto marriage during the nazi years because they couldn't get married, in order of shocking her prude male colleagues. Sense of dark humour, right there.
So, 1953 rolls around and there is chaos. Of course, the Supreme Court has to be heard concerning some cases and Dr. Scheffler is made the reporting judge for these. She is a major influence in basically stating "Well, men and women are equal under the constitution and we won't disregard that because lawmakers didn't feel like actually making new laws." There is a judgement to that effect. And gradually, some laws that weren't changed before are now. Except for one. The whole "Husband has the final say on childcare decisions clause". That one is supposed to be kept in the Civil Code even after a 1958 change in laws.
So a lawyer, Maria Müller-Lütgenau, contest the change on the basis of violating the constitutional equality. Dr. Scheffler fights again, mostly with her colleague, President of the Court Dr. Müller (not the aforementioned lawyers husband). The fight is mostly about the exact wording of how a marriage should be viewed under the constitution. In a karmic change of events, Dr. Müller gets ill, so he gives up fighting back, which means that Dr. Scheffler basically got her wording through.
But the best is yet to come. Normally, the Head of the specific bench would be the one to read the judgement, in this case President of the Court Dr. Müller. But Müller is sick (whether or not he actually was is open to debate). His replacement was... you guessed right: Dr. Scheffler. She reportedly read that judgement "with a smile".
And this is the story of how the only woman on that court, basically told the overt patriarchy to stick it. It wasn't and still isn't. I still hope that the story offered at least a little bit of a reason to smile. Keep fighting!
