by E. J. Graff
When did the shift happen from divorce only for marital crimes to divorce when love died? Apparently not in the 1960s, as today’s social commentators like to accuse, but in the mid-eighteenth century—just as capitalism seriously took root. One historian looked at Catholic petitions for annulments in one French town and found that in suits spread across classes of workers, bourgeois, and nobles, “only 9% before 1770 cited emotional attachment as a reason for marriage, while 41% after 1770 did so.” Similarly, historian Nancy Cott looked into a century of Massachusetts divorce records, which included everyone from heiresses to ex-slaves, and found that people seeking a divorce “never named loss of conjugal affection among their grievances in 58 petitions between 1736 and 1765.” Then there’s a big shift in the emotional weather, and “more than a tenth of 121 suits between 1766 and 1786 . . . contained complaints such as ‘her affections were thereby alienated from him,’ ‘all conjugal affection has fled,’ ‘he lost all affection for her,’ her actions ‘opposed nuptial happiness,’ he ‘ceased to cherish her,’ she had ‘almost broken his heart.’ ” Welcome to the land of Oprah! Even if people had tried to divorce earlier based on loss of love, they hadn’t felt it respectable to talk that way. Suddenly, in the eighteenth century, it was more and more acceptable to insist publicly that a marriage be fulfilled not just in its outward duties but in its heart. By 1849, Connecticut passed a (then notorious) law allowing divorce for “any such misconduct as permanently destroys the happiness of the petitioner and defeats the purpose of the marriage relation.”
This seems so obvious to us that we might not grasp how radical it was. Imagine telling a judge that you should be freed of your employment contract or military services, with no penalties, because you no longer loved your coworkers or officers. You’d be laughed out of court. Nobody says you’ll always enjoy fulfilling your duties, but society would dissolve if every contract could be enforced based only on its signers’ feelings—which is how the love-is-gone attitude toward divorce struck our predecessors. But as the traditional marriage economy collapsed—the economy in which two workers were dependent on each other for life—marriage’s heart was left as its main justification.
And yet in this new and escalating romance lay a painful paradox: both before and after they married, these new husbands and wives—who expected more from marriage than their ancestors— might actually intersect less in their daily lives than the farmers or shopkeepers or tanners from whom they descended. Their educational and occupational gap was actually wider. Now that the shop was off the premises and many goods bought in the market, father and son went off to earn wages and learn trades while stay-at-home mother and daughter were in charge of—what? Overseeing the servants and doing the marketing, buying the things they used to make. And so, despite a surge of romantic letters and diaries that recount swelling, bleating, blending, and beating hearts, a nineteenth- or twentieth-century married pair actually had less chance to know each other well, both before and after marriage, than did the far less sentimental married medieval peasants (although perhaps more than married medieval aristocrats—but then, aristocrats’ behavior had always been notoriously immoral, at least in Protestant terms). No wonder intimacy, romance, and parenthood became subjects fit for a hymnal, whether the Protestant hymnal of the nineteenth century or the pagan one of the twentieth: with the work partnership gone, what else—besides feelings and sex—is left for a married couple to share? And no wonder divorce spiked dramatically.
And so in the nineteenth century, battle was joined: between those who believed that marriage without affection was foul, and those who insisted that society would collapse if marriage’s definition was so fundamentally altered—from a permanent state to a temporary contract, dissolved at will. On one side was an 1845 English judge who scathingly opined on his country’s lack of a divorce law as he sentenced a man convicted of bigamy:
Prisoner at the bar, you have been convicted before me of what the law regards as a very grave and serious offence: that of going through the marriage ceremony a second time while your wife was still alive. You plead in mitigation of your conduct that she was given to dissipation and drunkenness, that she proved herself a curse to your household while she remained mistress of it, and that she had latterly deserted you; but I am not permitted to recognize any such plea. . . . [Y]ou ought first to have brought an action against your wife’s seducer if you could have discovered him; that might have cost you money, and you say you are a poor working man, but that is not the fault of the law. . . . You must then have gone, with your verdict in your hand, and petitioned the House of Lords for a divorce. It would cost you perhaps five or six hundred pounds and you do not seem to be worth as many pence. But it is the boast of the law that it is impartial, and makes no differences between the rich and the poor. . . . It is my duty to pass upon you such sentence as I think your offence deserves, and that sentence is, that you be imprisoned for one day . . . you will be immediately discharged.
On the other hand was a Tory Lord who argued that “the lower classes, whose morals are more corrupt and whose principles on these subjects are more lax than those of the higher classes, will be continually applying for divorces . . . [which] will increase the immorality of adultery, and indeed give encouragement to the commission of that offence.” Most people, in other words, will getaway with whatever they can. Even John Stuart Mill acknowledged that
most persons have but a very moderate capacity of happiness; but no person ever finds this out without experience, very few even with experience: and most persons are constantly wreaking that discontent which has its source internally, upon outward things. Expecting therefore in marriage a far greater degree of happiness than they commonly find: and knowing not that the fault is in their own scanty capabilities of happiness—they fancy they should have been happier with some one else . . . but if they remain united, the feeling of disappointment after a time goes off, and they pass their lives together with fully as much happiness as they could find either singly or in any other union, without having undergone the wearing of repeated and unsuccessful experiments.
Of course, both were right. Allowing people to leave does undermine marriage’s sense of security, absolute commitment, and willingness to compromise—and not allowing anyone to leave means some people will strangle inside what Milton called “the empty husk of an outside matrimony, as undelightful and unpleasing to God as any other kind of hypocrisy.” So which definition of marriage should the state endorse? The one that ensured an intact marital house, or the one that voted for the integrity of the individual choice? The answer was the one that fit the rising philosophy. Free choice for the individual, our new Western political philosophy, had to apply equally to the economy, to marriage’s entrances, and to its exits. In 1857, Britain passed a divorce law. Catholic France did the same in 1884. By 1886, only six American states refused to accept cruelty as grounds for divorce. The heart had begun to triumph—in law as in life.
But it had only just begun (to paraphrase the pop song) its triumph. Exactly how narrowly or broadly those divorce laws would be framed was still up for grabs. And so began a century of jurisdictional shopping that made courts, legislators, and individual citizens crazy. In the United States it began in 1850, when Indiana’s state legislature (passing a law written by free-lover and state legislator Robert Dale Owens) ushered in the purest incarnation of the idea that sans love, marriage should simply and freely unravel. Under this divorce law—the loosest the nation had ever known— judges could grant divorce for any reason at all, and more important, to anyone at all. A New Yorker who wanted to escape his wife could check into an Indianapolis hotel for an hour to establish residence, go to court, run ads in an Indianapolis paper “notifying” his wife of the divorce, and come home with an incontestable decree—all while his wife had no idea what was going on, and no chance even to argue for custody or property settlement. The great idea—that when love is gone the marriage simply dissolves— turned out to be immens
ely complicated. Who decides that love is gone? What if the other spouse disagrees: doesn’t he or she have any say? Who gets and supports the children? Must a man compensate a woman for the years she devoted to his care, and if so how? Should she be punished (and if so, more than he would be?) for being sexually adventurous, or a bad housekeeper, or an uncompliant wife? Who decides?
Indiana’s new statute became a national scandal. In 1858, the Indiana Daily Journal complained, “We are overrun by a flock of ill-used, and ill-using, petulant, libidinous, extravagant, ill-fitting husbands and wives as a sink is overrun with the foul water of the whole house.” But when the Hoosier state tightened its residence requirement, other frontier territories quickly took its place, vying for divorce infamy: Illinois, Utah, South Dakota, North Dakota, Oklahoma, Wyoming, and finally Nevada, which courted the divorce trade so assidulously that it developed a gambling and entertainment industry to occupy those who had nothing to do while waiting to establish residence. Lawyers in these various states advertised prominently in the New York, D.C., and San Francisco press, “Have You Domestic Trouble? Are You Seeking DIVORCE? Do You Want Quick and Reliable Service? Send for My Booklet.”
This blatant solicitation for divorce horrified those concerned with the goodness and righteousness of the American family. The Nation opined in 1893:
One does not need to take a high view of the sacredness of marriage, or a low view of divorce, to pronounce all this demoralizing and shocking. . . . Where, out of savagery, could such sights be witnessed as are said to be common in Sioux Falls hotels, where a divorced husband may be seen introducing his new wife to his old one, who, in her turn, presents her new husband, while the bewildered children involved in this scandalous mixture wander about in disconsolate uncertainty as to their identity and relationships? This is the very chaos of marriage. . . . the whole country [cries] out against these laws that encourage what is practically polygamy.
The question of whether states had to recognize each other’s divorces reached the Supreme Court—repeatedly. Over and over, for 150 years, the Supreme Court returned 5–4 verdicts that sometimes favored the out-of state-divorce . . . and sometimes did not. Depending on which way the unpredictable Court needle wavered, individuals were remarried or jailed for bigamy; gained or lost custody; were legitimate children or disinherited bastards. By 1948, one U.S. Supreme Court Justice was so frustrated at once again facing the divorce question that he wrote, “If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married, and if so, to whom.”
It is, perhaps, too much to ask courts to definitely solve contentious questions on which society still has not made up its mind. So long as the West’s consensus on marriage’s definition—was it “so long as we both shall live” or “so long as we both shall love”?—was shifting, determined people would travel across borders to change the borders of their marriages. But the direction was clear. Since the language of love had become the monarch of marriage, divorce was going to triumph. Dissenters could remain in their own marriages if they chose; and England allowed its ministers to refuse to celebrate remarriages they believed to be, essentially, polygamy. But divorce became a decision as individual as marriage.
The language of the antidivorce activists will sound very familiar—because it’s the same language used, variously, against any proposed change in the marriage rules, whether granting married women the right to own property, legalizing contraception, allowing interracial marriage, or condoning same-sex marriage. In 1816, Yale President Timothy Dwight warned that Connecticut’s divorce law would have dire consequences: “Within a moderate period, the whole community will be thrown, by laws made in open opposition to the Laws of God, into general prostitution. . . . To the Eye of God, those who are polluted in each of these modes [divorce and prostitution] are alike, and equally impure, loathsome, abandoned wretches; and the offspring of Sodom and Gomorrah.” Horace Greeley wrote in his New York Tribune that divorce violated marriage’s very definition (you could read it in the dictionary!): joining two people for life. “There may be something better than Marriage; but nothing is Marriage but a solemn engagement to live together in faith and love till death,” he wrote, offering to let divorce proponents have their way so long as they would “give their bantling a distinctive name, and not appropriate ours.” Please—do what you like, just so you don’t profane my institution by calling yours a “marriage.”
In Britain, socialists’ views on consensual divorce were blasted as “wicked, unchaste, disgusting, and beastly.” New Zealand politicians fought local divorce proposals by warning that American states had already shown that it led to “successive polygamy.” But once such rhetoric hits the streets, the debate is over, and the “traditional” advocates have lost. Appeals to an older morality never mean that morality itself is dying, but rather that a new morality is being born—a morality that justifies sex and marriage in a way that fits contemporary reality.
After England passed a divorce law in 1857, its number of divorces a year suddenly jumped from four to between two and three hundred. In France, after the 1884 bill, divorces jumped to seven thousand, twice the annual number of official “separations of bed and board” there had been before 1884. In the United States, divorce climbed at rates that caused predictions of civilization’s immediate demise: “Between 1867 and 1929, the population of the United States grew 300 percent, the number of marriages increased 400 percent, and the divorce rate rose 2,000 percent.” The death of the family was predicted when, during World War I, divorce ended one marriage in six. By then attitudes had changed so dramatically that even in New York—where the only ground for divorce was adultery—everyone knew that you could get a divorce simply by having your picture snapped lying on a hotel bed with a co-respondent-for-hire. Law could not keep flying in the face of social reality.
So what caused the jump in divorce rates? Perhaps the most fundamental reason, as almost every sociologist today recognizes, was economic. Once women could get an education and make a living, they were free to refuse someone they’d discovered to be a tyrant. One 1909 professor wrote, “If marriage is a failure, she does not face the alternative of endurance or starvation. . . . She is no longer compelled to accept support or yield to the tyranny of a husband whose conduct is a menace to her health and happiness.” Many commentators note that the only way to reduce the divorce rate would be to ban women (not just mothers but all women) from working—an option that no longer seems enforceable or even moral. The economy made the choice for all of us: the individual is now our banner.
The debates over same-sex marriage and divorce are not, of course, precisely comparable. As many have pointed out, liberal divorce laws can, unless checked, leave the weaker—usually wives and children—in a position to be abandoned, exploited, and hurt. Divorce’s questions for social policy are exceptionally complex and well beyond the scope of this book: as every society has recognized, marriage’s exit rules must be carefully crafted and overseen, or marital bullies take all. But when my bond with Madeline is recognized, no one will be harmed, abandoned, or left bereft. And so what is comparable is the underlying debate over what a marriage is for. Once happiness is publicly accounted as marriage’s purpose and measuring stick, how dare a democratic state decide for its citizens whether they may leave—or enter?
“One of the paradoxes of modern western society is the simultaneous popularity of marriage and divorce,” one historian writes. Finally we can see that this is not a paradox but a necessary link. If marriage is defined by love, then lovelessness is by definition a marital crime. And it is precisely this that makes both marriage and divorce so popular: although people may want guidance or breach-of-contract rules on their financial or social interests, everyone is an authority on their inner lives. And once individuals’ decisions about their own happiness governs something so fundamental as marriage’s exit rules, how can society base its entr
ance rules on anything else? How dare the state presume to deny the value or integrity of my spiritual life? Or to argue (as debaters say) for the affirmative, if marriage is for love, affection, and companionship—then same-sex couples belong.
Consent: Tying the Knot, or Who Can Say “I Do”?
This book began with money and ends with heart—as it should, since that’s the story of marriage in Western history. Capitalism’s long untangling of personal finances from matrimony is the central event in the history of marriage, the one that has led to the twentieth century’s coronation of love. Which means that the patient reader has been led through this story more than once during this book. While there are still an endless number of historical facts, twists, and turns in the history of consent—do you or your father get to propose and say yes?—we’ve really been telling that story throughout. Oh, there are a few peculiar or noteworthy points in the history—and for a few pages we’ll look at those. But a chapter titled Heart is also a kind of reward—an excuse to tell a marriage story that’s just a bit more personal.
First, a little leapfrogging through history. When making a marriage, who has the right and obligation to say yes? You might smile at the question itself. But take the Romans. Their weddings included pledges exchanged by—are you sitting down?—the groom and his father-in-law. In the standard upper-class Roman ceremony, the groom said, “Do you promise to give your daughter to me to be my wedded wife?” The bride’s father answered, “The gods bring you luck! I betrothe her.” She said not a word. Because legal marriage was such a dynastic arrangement, an upper-class way of arranging alliances and inheritances, marriage had of course been arranged among the families—so much so that even the son’s consent could be quite superficial. According to the Roman Digest, or code of laws, “If a son marries a woman on the order of his father, that marriage is valid, although one cannot be forced to marry against one’s wishes: however, it will be presumed that he chose to accept.” Presumed that he chose to accept: that doesn’t sound much like our active courtships, does it? But at least the groom had to open his mouth. The bride—well, “a daughter who does not openly resist her father’s wishes is assumed to have consented.” After all, who would have stood up for her individual choice, given that her family or clan was the all-powerful civil authority, the law under which she lived?