This Article is about the lost history of a campaign by the National Association of Women Lawyers (NAWL) to achieve uniform no-fault divorce law reform in the United States. In one form or another, NAWL has existed continuously since before 1911, when it began to publish the Women Lawyers Journal.Footnote 1 From its Progressive era origins until today, NAWL has pursued a women's rights agenda within a professional framework.Footnote 2 Although prior to ratification of the Nineteenth Amendment in 1920 women's suffrage was a key issue for the women lawyers, even then it was far from the only one. Both before and also after suffrage, the Journal reflected the wide-ranging interests of NAWL members, such as legal doctrines in many areas of practice (including divorce), the education of female lawyers, the advancement of women in the profession and in society, and the protection of women and children.Footnote 3 From the 1930s through the 1950s, NAWL also played an active role in two postsuffrage women's rights struggles, the campaigns for female jury service and for the Equal Rights Amendment (ERA).Footnote 4
This history makes it particularly interesting that when the organization undertook what its own chronicler described as “the greatest project NAWL has ever undertaken,” it was about divorce law.Footnote 5 In 1947, NAWL voted “to draft and promote a bill that would embody the ideal of no-fault divorce.”Footnote 6 Instead of the contortions and invitation to perjury in the existing patchwork of fault-based divorce statutes, NAWL sought a uniform model act that would check the evils of migratory divorce and promote national uniformity. It would reflect a more contemporary understanding of the complex causes of marital breakdown, it would operate in the modern spirit of conciliation, and it would be “therapeutic” in its procedure. Despite their belief in its innovative nature, the women lawyers later insisted that the bill that they had designed was “not as revolutionary as appears at first glance.”Footnote 7 In their view, it was “new chiefly in its attitude and treatment of divorce and in the ‘therapeutic approach’ which has been adopted.” Footnote 8 “Otherwise,” they said, “the Bill represents a restatement of the best case law and statutory law to be found throughout the forty-eight states.”Footnote 9
After NAWL formally approved its model bill in 1952, the women lawyers sought consideration for their proposed Uniform Divorce Act by the National Conference of Commissioners on Uniform State Laws (NCCUSL). The conference, an influential private body of distinguished members of the legal profession devoted to developing and promoting uniform model acts for the states to adopt, refused to consider the NAWL proposal unless it was submitted by a section of the American Bar Association (ABA).Footnote 10 It took years for NAWL to overcome that hurdle by successfully leading the way to the establishment of the Family Law Section of the ABA.Footnote 11 Even when NAWL finally was able to submit its proposal, however, NCCUSL continued to bypass the women lawyers and their bill.
The lost history of NAWL's greatest project intersects with three historical inquiries about the 1950s. It interrogates narratives about (1) the history and state of divorce law at that time, (2) the alleged culture of “domesticity” in the decade, and (3) the continuity of women's movement activism in the so-called “doldrums” years. Although there are extensive historical literatures in each of these three areas, to date there has been no scholarly study of NAWL's “no-fault” divorce reform proposal or of NAWL's role as an activist professional and women's rights organization.Footnote 12 This article recovers NAWL's lost history and explores how it fits into the gaps.
In the narratives about the history of divorce law, scholars have established that the changes in the statutory law followed rather than led the long-term rise in American divorce rates that was evident years before the no-fault “revolution” of the 1970s.Footnote 13 They have written about the fascination with “expertise and therapeutic practices” already evident in the 1950s, and about its eventual defeat in the world of divorce law.Footnote 14 They have reviewed in detail the controversies and compromises surrounding California's pioneering no-fault Family Law Act of 1969 and NCCUSL's Uniform Marriage and Divorce Act (UMDA) of 1970 (as amended in 1971 and 1973).Footnote 15 Scholars debate about how revolutionary the no-fault changes of the 1970s were meant to be, and they disagree as to the ultimate effects of those reforms on the welfare of women and children.Footnote 16 However, they have not considered what the history of NAWL's prior campaign may have to offer to our understanding of those questions.Footnote 17
In the narratives about the culture of “domesticity” in the 1950s, historians have emphasized what one scholar has called the “singularity” of the American family in that decade.Footnote 18 The demographic patterns of the 1950s broke with those of earlier decades, at least temporarily.Footnote 19 Divorce rates spiked after World War II,Footnote 20 but there was a significant slowdown in the 1950s.Footnote 21At the same time, the median age at first marriage fell for both women and men. More Americans married and stayed married.Footnote 22 Couples who married in the 1950s had more children than earlier cohorts, a trend that peaked in 1957.Footnote 23 Some historians of popular and political culture have described what they consider to be a corresponding “domesticity” for women who were “homeward bound” in the 50s.Footnote 24 Elaine Tyler May has argued that post-World War II Cold War anxieties encouraged the development of a “domestic ideology” as a “buffer.”Footnote 25 With exceptions that she minimizes more than she should, May sees the family-centered generation of the 1950s as “apolitical” and leaning more to the “therapeutic approach” of experts than to social solutions for social problems.Footnote 26 Family security thus acted as a kind of domestic “containment” of social and political anxiety.Footnote 27 Revisionist historians such as Joanne Meyerowitz long ago began to criticize this stereotyping of American women in the 1950s.Footnote 28 She warned that the domesticity narrative “flattened the history of women, reducing the multidimensional complexity of the past to a snapshot of middle-class women in suburban homes.”Footnote 29 In her view, it was a mistake to leave out the many who were not white, middle-class, married, and suburban, and even those among the latter who were not wholly “domestic or quiescent.”Footnote 30 The anthology that Meyerowitz edited in 1994 sought to displace the domestic stereotype from the center of historical study.Footnote 31 It demonstrated that regardless of existing conservatism and constraints, there was a much more complicated reality operating.Footnote 32
In the older narratives about activism, historians portrayed the women's rights movement as quiescent in the 1950s. Newer generations of scholars, however, criticized an account of discontinuity in which there was a first wave of activism that subsided after women gained the vote in 1920, and a second wave that did not arise until the mid-1960s. The traditional story was that in between those two waves of activism the women's movement languished in a veritable doldrums. Revisionists see a problem with the “waves” metaphor in general.Footnote 33 Instead of being limited by the doldrums narrative, historians have recovered the stories of the many women who most certainly were not “quiescent” in the 1950s.Footnote 34 Some revisionists take “a longer view of feminist activism,” echoing an approach to the history of what has been called the “long civil rights movement.”Footnote 35 Most of this revisionist work has focused on more progressive women, rather than on what historians Leila Rupp and Verta Taylor call the “elite-sustained” feminist battle for the Equal Rights Amendment that was led by Alice Paul's National Woman's Party (NWP).Footnote 36 Although NAWL was a white, middle-class professional organization that endorsed the ERA in 1935 and worked hard for it in the 1940s and 1950s, it would be a mistake to lump them with the NWP and to dismiss their uniform divorce reform project as a result. It is well worth exploring what NAWL's campaign has to add about the history of the women's rights movement in the 1950s.
Contributing to our understanding of the decade of the 1950s, this article reflects on a missing piece of the history of divorce and on an organization of professional women who were neither wholly domestic nor quiescent in their pursuit of their “greatest project.”
Origins and History of the NAWL
The origins of the NAWL can be traced to a New York women lawyers’ club that started meeting in 1899 and was the largest of similar groups in other cities.Footnote 37 In her article on the “new woman lawyer” of the early twentieth century, Virginia Drachman explained that these clubs were part of a double development: They reflected “the general trend of organization which permeated the entire legal profession” at a time of professionalization and the spread of local and state bar associations.Footnote 38 At the same time, many of those organizations were not open to women. They therefore founded their own bar associations as a way to combat sex discrimination and also to express their professional identification.Footnote 39
In 1911 the New York club undertook a national project, the Women Lawyers Journal, a publication that continues today.Footnote 40 Drachman noted that the existence of the Journal immediately boosted membership in the association, from 20 in 1911 to 76 within 2 years, to 130 by 1914, and that it spread representation beyond the local region.Footnote 41 The Journal “had a special mission; namely, to meet the unique professional needs of women lawyers.”Footnote 42 This encompassed professional and practical matters and created a vehicle to monitor legal reforms that interested women lawyers. The Journal also was a place to announce professional achievements.Footnote 43 It “helped to build a national network of women lawyers.”Footnote 44 Even though the ABA opened its membership to women in 1917 (although the same was not necessarily true of local bar groups), the female membership of the organization that was renamed the National Association of Women Lawyers still felt the need for a separate entity in addition to the ABA.Footnote 45 This posed the ongoing and contested question of whether there was something unique about women's place within the profession.Footnote 46 In the 1930s it was clear that even in sex-integrated bars or in government positions, women rarely enjoyed the same opportunities as men.Footnote 47
The women of NAWL later claimed that “the JOURNAL started a crusade of publicity for women in the law or otherwise in the public eye, as in suffrage, business, or politics.”Footnote 48 In 1911, the editors of the first issue explained that although NAWL was an organization of lawyers, the Journal was devoted to the interests of “all womankind”; that is, “whatever touched women particularly.”Footnote 49 That viewpoint, however, did not mean that it was not interested in how “woman's cause” touched “man's cause” and all humanity.Footnote 50 The Journal’s editors avowed that they did not want to assume an “antagonistic feministic view.”Footnote 51 Whatever label NAWL's Journal eschewed, however, from its origins it was explicitly dedicated to women's rights. The initial volume included articles and notes on education and advancement for women lawyers, the women's club movement, suffrage, politics, industrial protection, temperance, uniform divorce reform, and conflicts of law in divorce jurisdiction.Footnote 52 The concerns reflected in the Journal placed NAWL squarely within the Progressive reform currents of the day at a time that some historians describe as an apogee of women's participation in public life: in voluntary organizations, lobbying, trade unions, professional education, and professional activity.Footnote 53 The Journal published allied items on Progressive causes such as the women's club movement,Footnote 54 temperance,Footnote 55 and other reforms that it regarded as protecting women and children, such as the creation of “widows” or “mothers” pensions.Footnote 56 Like other Progressive organizations, NAWL approved social feminist efforts to pass and defend gender-specific protective labor laws for women, although it abandoned this position after it endorsed the ERA in 1935.Footnote 57 Equally consistent with reform preoccupations of the day, NAWL's Journal also reported favorably on efforts to control marriage of the “unfit” (eugenics).Footnote 58 The implicit and sometimes explicit racism of white Progressive reform movements also was reflected in its columns.Footnote 59
In particular, however, the Journal was a women's rights vehicle. It aimed to encourage the professional advancement of women lawyers, judges, and public servants and to combat discrimination against them.Footnote 60 It published news and articles about women's suffrage,Footnote 61 discrimination against “mother-teachers,”Footnote 62 the loss of citizenship for American women who married foreign husbands,Footnote 63 and civil service discrimination against women.Footnote 64 Even after suffrage was obtained, NAWL continued to pursue its women's rights agenda.Footnote 65 In 1932 it was one of the primary women's organizations that filed amicus petitions in an unsuccessful effort to persuade the Supreme Court to review a Massachusetts law that excluded women from jury service.Footnote 66
NAWL and Migratory Divorce
From the outset, the Women Lawyers Journal reflected the women lawyers’ special interest in divorce law.Footnote 67 The first issue in 1911 included two articles about the conflicts arising from migratory divorces; that is, those involving unhappy spouses who could not satisfy rigid rules at home, and therefore repaired to more liberal states in order to obtain a divorce.Footnote 68 The first was a report on a contemporary effort by conservatives who sought to rein in this phenomenon through strict uniform divorce legislation.Footnote 69 Historically, anxieties about rising divorce rates had been linked to concerns about migratory divorce and from time to time had led to demands for restrictive measures.Footnote 70 According to historian William O'Neill, the antidivorce cycle of the early twentieth century occurred in “crucial years for divorce” that were the “last time when public opinion could reasonably have been expected to support genuinely repressive action” against rising divorces rates.”Footnote 71 Conservatives sought uniform laws that would limit divorce throughout the nation.Footnote 72
In 1906, President Theodore Roosevelt agreed to convene a nongovernmental National Congress on Uniform Divorce Laws to draft measures to control divorce.Footnote 73 Some “women's rights leaders” were “alarmed” by the conference call.Footnote 74 They feared the likelihood that men would once again be determining matters of great importance for women's lives.Footnote 75 Once the conference met, however, the delegates to the National Congress who represented different states and religious interests found it hard to agree on any substantive principles.Footnote 76 They were able to approve only a modest model statute designed to limit migratory divorce.Footnote 77 The draft law was adopted by the NCCUSL in 1907. NCCUSL's Uniform Act, however, gained no traction in the states and the commissioners withdrew their approval in 1928.Footnote 78 At the peak of the antidivorce crusade in 1906, the Supreme Court also chimed in with a limiting decision. In Haddock v. Haddock, the Supreme Court held that jurisdiction to enter an original divorce decree entitled to recognition in sister states depended on which spouse was at “fault” for disrupting the marital domicile.Footnote 79 It did not overrule this ruling until 1942.Footnote 80
In the second article in the 1911 issue of the Women's Lawyers Journal, Minnie Neugass provided a practical recipe for the steps needed to obtain an out-of-state divorce that would be valid everywhere.Footnote 81 She explained that under existing constitutional law this could only be done if the spouses were both personally within the jurisdiction of the court where the divorce suit was filed or if at least one of the parties was genuinely domiciled in that state.Footnote 82 Neugass noted that in general a husband unilaterally established the domicile for his wife.Footnote 83 But if the husband was at fault in the breakup of the marriage, the innocent wife could and must establish her own separate domicile.Footnote 84 Therefore, proper jurisdiction depended on “fault.” An absconding guilty husband could not force an innocent wife to answer to a suit in his new domicile, but a guilty wife could be sued there.Footnote 85 A wife who left the marital jurisdiction could still sue her husband where he was domiciled; the stay-at-home wife could sue her spouse either in the state of the former marital domicile or in the state “to which he removes.”Footnote 86 In light of this jurisdictional law, Neugass emphasized that one “seeking release from the bonds of matrimony” needed to obtain a decree that was valid everywhere. Otherwise, the person could be divorced in one place but still married and subject to prosecution for bigamy upon remarrying in another.Footnote 87
Articles appearing in the Journal in the 1930s implied that NAWL members were open to more liberal divorce laws, at least in the most stringent states.Footnote 88 In a talk delivered in Reno and reported in the Journal in 1932, Felice Cohn of Nevada even defended the generous migratory divorce laws of her home.Footnote 89 She noted that her state frequently was “criticized, censure[d], and even reviled for our liberal laws, but have you ever stopped to consider that that is what the people desire, or they would not be enacted.”Footnote 90 Reno itself should not be held up to scorn, she said, because “it is due almost entirely to the need of relief from irksome bonds of matrimony of the citizens of other states that we find ourself [sic] the ‘Cure’ center of the World.”Footnote 91 Cohn claimed that Nevada courts were careful to protect deserving wives and minor children and to provide all parties a fair hearing.Footnote 92 Finally, she minimized the uncertainties surrounding the recognition of Nevada decrees in other states. In fact, she argued, there were only four states that questioned their validity—New York, New Jersey, Pennsylvania, and Connecticut—and even then it did not come up very often.Footnote 93 Cohn defended the “fairer and more humane” law of Nevada, which refused to keep an unhappy couple yoked together forever just because both of them were partially at fault in their marital breakdown.Footnote 94
In 1935 NAWL held a comprehensive Forum on Divorce Problems at its Annual Convention.Footnote 95 The reporter, Martha Gold, was a sponsor of divorce reform in the District of Columbia.Footnote 96 She summarized the great disparities in divorce law grounds in the various American jurisdictions.Footnote 97 Residency rules also varied widely, thereby creating likely centers for migratory divorce. Forty-seven states and the District of Columbia granted divorces for adultery; South Carolina banned absolute divorce in its constitution (although it allowed a legal separation that permitted support orders but did not allow remarriage);Footnote 98 forty-six states permitted desertion or abandonment grounds; forty-two permitted cruelty; thirty-eight permitted drunkenness or addiction to drugs; and forty-two permitted imprisonment for a felony.Footnote 99 The disparities between the states extended to migratory divorce. Nevada had the lowest barrier to filing a petition, with a residency of only 6 weeks; Connecticut (3 years) and Massachusetts (5 years) had the highest. In light of these differences, it was not surprising that Nevada and Florida became magnets for migratory divorces or that unhappy spouses who fled New York, Massachusetts, and Connecticut later became litigants in the Supreme Court's divorce jurisdiction cases.Footnote 100 In the 1930s, NAWL writers already were bemoaning the patchwork of archaic state divorce laws that encouraged migratory divorce.
Divorce in the Mid-Twentieth Century and NAWL's “Greatest Project”
By the time NAWL launched its project in 1947, the incidence and culture of divorce in America had been transformed, but the law was relatively frozen in place. After World War I and in the interwar years, the rate of American divorces began a long-term secular rise toward an age of “mass divorce.”Footnote 101 Although the economic crisis of the Great Depression of the 1930s flattened the upward-tending curve, that was only a temporary check.Footnote 102 Interested states still competed for the migratory divorce trade.Footnote 103 Nevada, Idaho, and Arkansas engaged in a “veritable trade war … each vying for out-of-state clients for its divorce courts.”Footnote 104 In 1931, Nevada reduced its already low 3 month residency requirement still further, to 6 weeks, “‘in a frenzied attempt to head off threatened rivalry’” from other states.Footnote 105 Despite the excited media attention, however, migratory divorces comprised only a “negligible fraction” of marital dissolutions.Footnote 106
Marriage and divorce rates climbed once again in the wake of World War II and the concurrent revival of the United States economy.Footnote 107 Americans began to create new families in record numbers during the war.Footnote 108 There were more than 1,000,000 families formed between 1940 and 1943 than in comparable preceding years, and fertility increased when the United States entered the war.Footnote 109 Those hikes extended to divorce, too. Paul Glick of the Bureau of the Census reported in 1949 that based on previously projected long-term trends three million more marriages but also one million extra divorces than expected had occurred between 1940 and 1947.Footnote 110 When the veterans came home in 1946, divorces spiked to twice the usual number.Footnote 111 The increases then plateaued for the 1950s. The divorce rate ranged between 2.1% and 2.5% annually, a level not dramatically higher than the rates of 1.8% and 1.9% in the late 1930s. The relative slowdown, however, proved to be merely a temporary lull before the storm. More Americans than ever before divorced in the 1960s. Divorce rates skyrocketed in the 1970s before peaking in the early 1980s and then remaining more stable at a relatively high level.Footnote 112 Therefore, because NAWL began its project in 1947 and then pursued it doggedly throughout the 1950s, there is no exact correspondence between their campaign and rising divorce rates.
It is difficult to isolate all the reasons that induced a growing number of Americans to divorce.Footnote 113 Historians seem to agree, however, that the rises were not driven by any change in formal law.Footnote 114 Rather, the law followed rather than led the social changes that made divorce a more acceptable resolution to marital breakdowns. Couples seeking divorce in the 1930s through 1950s often were able to evade the strictures of rigid fault-based statutes.Footnote 115 Trial courts commonly tolerated unspoken collusion by the divorcing spouses.Footnote 116 To a lesser extent, unhappy wives and husbands also migrated to more liberal jurisdictions to get divorced.Footnote 117 Regardless of legal doctrines that prohibited the practice, the collusive and migratory dissolutions constituted what the consumers wanted; that is, divorce by mutual consent.Footnote 118 As a result, the law on the books was growing ever more out of sync with the practice of law as well as with popular expectations about marriage and divorce.Footnote 119
Although it is hard to find reliable data, by midcentury there were thousands of women practicing law in the United States and many, if not most of them likely were practicing divorce law.Footnote 120 The women lawyers of NAWL had been interested in divorce law reform since 1911. In 1947, they undertook their most ambitious project ever: they announced that they intended to draft a uniform no-fault divorce law designed to align the formal law with modern mores as well as to redress the problem of migratory divorce abuse.Footnote 121 During the war, the organization had gained some acknowledgment from the ABA that may have helped to shape their ambitions for the project.Footnote 122 NAWL aimed to produce a model law that would be promulgated under the auspices of the NCCUSL and adopted by each state individually. It chose that tactic to achieve uniformity because the American system of federalism rendered direct federal legislation on marriage and divorce unconstitutional.Footnote 123 The abortive effort by the General Federation of Women's Clubs and Senator Arthur Capper of Kansas to amend the United States Constitution in order to overcome this difficulty lasted from 1922 to 1947, when Senator Capper ceased introducing his bills.Footnote 124 NAWL studied the Capper amendment and also a proposed Full Faith and Credit statute proposed by Senator Patrick McCarran before adopting its solution. “They felt that a clear, simple model of a uniform divorce bill had never been drafted and presented to the states for adoption and so this proposed solution had never been given a fair trial.”Footnote 125
NAWL believed that widespread state-by-state enactments of a model act could bring about the desired uniformity. Along these lines, it also enthusiastically supported the Uniform Reciprocal Enforcement of Support Act (URESA).Footnote 126 That statute dealt with the increasing numbers of ex parte divorces in which a deserting husband left his home state jurisdiction to evade responsibility for support of his family. Promulgated by NCCUSL in 1950 and quickly approved by the ABA, URESA was the most successful uniform act to date. By 1954, thirty-seven states had adopted the provision, which had the effect of protecting the public purse from the necessity of supporting dependent and abandoned wives and families of husbands who had fled the jurisdiction.Footnote 127 However, husbands who managed to obtain an ex parte migratory divorce still could evade the effect of this legislation.Footnote 128
From the inception of its project, NAWL avowed that it was repudiating the fault basis for divorce in favor of a more modern approach. In a “classic article”Footnote 129 in 1947, N. Ruth Wood, then Chair of NAWL's Committee on Marriage and Divorce Law, explained the newer view: people now “generally believe that the unwanted marriage relationship should be broken.”Footnote 130 Unfortunately, however, the lingering effects of the history of divorce law meant that outmoded statutes continued to require that one party “must be innocent and wronged and the other guilty of some specific act prescribed by statute which renders the innocent spouse entitled to a divorce.”Footnote 131 “This theory is contrary to our present mores,” she continued, “as common thought today is that divorce is a remedy for domestic incompatibility and should be granted when the parties consent.”Footnote 132 Although the current laws precluded consensual divorce in theory, Wood noted that in practice collusion occurred all the time. Furthermore, there were all kinds of conflicting state laws, from the hyper-strictness of South Carolina (no divorce) and New York (only adultery) to the liberal divorce mills. In a highly mobile population, these disparities led to inconsistency and confusion.Footnote 133
Wood argued that it was time for reformed divorce laws based on a more “conciliatory” philosophy.Footnote 134 In this “age of the common man,” she wrote, Social Security laws “have been enacted ‘to defend all families against any common economic risk that threatens their independence and wellbeing.’”Footnote 135 Similarly, family law should recognize marital risk. To succeed, marriages had to be based on “the satisfaction of the individuals.”Footnote 136 When they failed to do so, Wood explained, then divorce should be available not as a punishment, but as a common sense solution for a sad situation.Footnote 137
Although NAWL acted first, it was not alone in its critique of the increasingly out-of-sync state of the law.Footnote 138 In 1948, President Harry Truman convened a National Conference on Family Life. Much had changed in American culture since 1906, when Theodore Roosevelt had called together the militantly antidivorce National Congress on Uniform Divorce Laws, although each gathering occurred following a great war and sounded a family-saving theme. One hundred twenty-five agencies and experts interested in the welfare of the family met under private auspices in 1948.Footnote 139 The goal of the conference “was to discover specific means by which the American family may be strengthened for the benefit of its individual members and society.”Footnote 140 An Inter-Agency Committee on Background Materials provided government data.Footnote 141 The volume included a chapter on the “Legal Status of the Family” that had been prepared by the Women's Bureau in the Department of Labor in collaboration with the Children's Bureau and the Bureau of Public Assistance of the Federal Security Agency and the Bureau of Labor Standards in the Department of Labor.Footnote 142 Although the data provided were presented objectively, the Women's Bureau was a center of the “Women's Bureau Network,” a loose coalition of progressive labor and women's organizations who, unlike NAWL, actively opposed the ERA at this time.Footnote 143
Although the background volume described some limited new trends in the traditional law of husband and wife, two thirds of the states still treated property acquired during the marriage as being under the control of the husband as the “head of the family.”Footnote 144 Divorce law was even more hidebound than the law of marriage. According to the legal status chapter there were six main types of divorce grounds recognized in the various states: “conduct violating the sanctity of the marriage relation; violent or gross conduct, menacing life, health, or happiness; conduct showing willful or negligent disregard of marital obligations; incapacity to fulfill marital obligations; civil death through criminal status or prolonged absence without word of whereabouts; or defective marriage.”Footnote 145 Twenty-four states granted only “absolute” divorces; that is, decrees that severed the marriage relation completely and allowed remarriage.Footnote 146 Twenty-three states and the District of Columbia provided either for absolute or for “limited” divorce (a legal separation that permitted support orders but did not allow remarriage).Footnote 147 South Carolina did not grant absolute divorce on any ground, but permitted wives to gain legal separation in some instances.Footnote 148
During early planning for the Family Life Conference, the Governing Board of the ABA was approached to send a legal delegation. At first reluctant to do so, the board only changed its mind and acceded to the importuning of Reginald Heber Smith (of Legal Aid fame), William L. Ransom, and Olive G. Ricker when it learned that otherwise the left-leaning National Lawyers Guild would become the sole delegation representing the legal profession.Footnote 149 The president of the ABA then appointed Smith to chair a liaison committee that included Clarence Kolwyck of the Chattanooga Bar (who had revealed “divorce mill” abuses in his city), William P. MacCracken, Jr., of Washington (former secretary of the ABA), Charlotte E. Gauer of Chicago (president of NAWL), William L. Ransom of New York (former ABA president), and Judge Paul W. Alexander of Toledo Ohio (well-known for presiding over that city's Juvenile Court).Footnote 150
When Smith published an early draft of the ABA delegation's proposed report in the December 1947 issue of the Atlantic Monthly, he reported receiving telling responses.Footnote 151 Lawyers were disgusted and ashamed of the role that they played in a divorce drama that required them to engage in “double-talk” in advising their clients, judges were “bitter” about their “impotence,” social workers expressed “unconcealed scorn,” and the press and periodicals showed their “contempt” for divorce laws, including decisions of the Supreme Court.Footnote 152 Smith concluded that American divorce laws were a “mess” and that “society, by and large, has practically made up its mind to ignore the law.”Footnote 153
In an initial report to the executives of the Family Life Conference in March of 1948,Footnote 154 Smith explained that the old premise of guilt and punishment should be replaced with that of “prevention.”Footnote 155 The punishment model yielded only abuse and injustice. It forced “normally decent people” to commit perjury or adultery.”Footnote 156 The new premise of prevention, on the other hand, might or might not accomplish very much but anything it did would be “pure gain” because at least the lying, cheating, and unfaithfulness would be avoided.Footnote 157 Instead of legalistic sleight-of-hand, “applied social case-work” drawing on all the resources of the community could be brought to bear.Footnote 158 “American Public Opinion,” Smith avowed, “is Ready for a Revolutionary Change.”Footnote 159
Judge Paul W. Alexander of Toledo's Juvenile Court subsequently succeeded Smith as Chair of the ABA delegation.Footnote 160 He was one of the chief proponents of what historian J. Herbie DiFonzo has called “coercive conciliation” through the administration of divorce law through family courts based on the juvenile court model.Footnote 161 The final report of the delegation explained that as a dissolving family was already broken before divorce, rather than by that legal remedy, it was necessary to change from a focus on punishment to one based on treatment.Footnote 162 Following the juvenile court prototype, courts (preferably integrated family courts) should become conduits through which expert specialists could offer conciliation services.Footnote 163 The delegation's final report also introduced a dose of realism to balance a desire for family preservation. It acknowledged that feuding spouses were often just fed up and wanted “riddance not reconciliation.”Footnote 164 The ABA lawyers nonetheless thought that conciliatory services might be successful in some instances and were central to the plan in any case.Footnote 165 The report further advocated elimination of “defenses” to divorce actions such as “collusion” (mutual consent), “recrimination” (where both spouses were at fault), and “condonation” (where the innocent spouse slept with the guilty spouse after learning about the adultery).Footnote 166 These “revolutionary” changes were to be achieved by procuring “uniformity of divorce legislation through concurrent action by the several States.”Footnote 167
In the end, however, there were only two action items proposed by the ABA delegation to the Family Life Conference: it recommended that the full conference should urge President Truman to appoint a commission to re-examine the laws of marriage and divorce, and that the conference should also express support for specialized family and juvenile courts.Footnote 168 In May of 1948, the full conference accepted the ABA delegation's report with much fanfare, but it took no vote on the recommendations.Footnote 169 In fact, the conference lacked authority to pass binding resolutions. For its part, the ABA's delegation had no intention of endorsing any of the nonlegal recommendations of the conference.Footnote 170 Therefore, the Family Life Conference did not provide a model for moving forward to reform outmoded divorce laws. It just amounted to an exercise in rallying the inner circle of religious, social service agency, and professional troops in an expression of expert opinion on the status and health of the American family.
The report of its delegation to the Family Life Conference yielded few results even within the ABA itself. The ABA created a “Special Committee on Divorce and Marriage Laws and the Family Courts” (“ABA Special Committee”).Footnote 171 That committee spent the first year of its existence futilely attempting to persuade President Truman to appoint a proposed “commission.”Footnote 172 According to committee member Clarence Kolwyck, the president did not act because he feared criticism from the Catholic Church.Footnote 173 Kolwyck later said that the ABA Special Committee was “foredoomed to failure; indeed it produced no concrete outcome from its years of seeking further action.”Footnote 174 A different autonomous “inter-professional commission” that was established in 1950 and was supposed to report to NCCUSL likewise fizzled out after years of futility.Footnote 175 Thus, by mid-century, despite anxieties about divorce and archaic divorce law, the legal establishment apparently lacked the will to do anything about it.
While the ABA's Special Committee dithered, NAWL forged ahead with drafting its model bill.Footnote 176 Now under the leadership of Matilda Fenberg of Chicago,Footnote 177 by 1950, NAWL's Uniform Divorce Law Committee had a working version ready for consideration by a conference of local bar and community groups in Cleveland, Ohio.Footnote 178 In 1951, a Chicago Bar Association subcommittee that included Fenberg used her ideas “as a structural basis” for a “Proposed Uniform Divorce Bill.”Footnote 179 Fenberg subsequently reported on it to NAWL, which formally adopted and approved “the principles and draft” at its 1952 annual meeting.Footnote 180
The full text of the approved version of the bill was published in the Women Lawyers Journal in 1952.Footnote 181 The “Whereas” section declared three policies and concerns. First, the divergent divorce laws among the states were confusing, unsatisfactory, and not uniform. As a result, the validity of subsequent marriages “frequently” was called into question, and rights in property were clouded.Footnote 182 Second, the continuation of a marriage between two parties “which has become unbearable” to them, “may be unfair to the children, if any, and may be of no value to the State.”Footnote 183 Third, a decree of divorce “ought” to be granted when the court “in its sound discretion” finds “that there is no reasonable possibility of reconciliation … and that the welfare of [the husband, wife, and children, if any] will be promoted by the divorce.”Footnote 184
Even though there was a relatively minor incidence of such divorces, the evils of migratory divorce had preoccupied divorce critics for the past 50 years. An explanatory “Introduction” that accompanied the text of the bill in the 1952 issue of the Women Lawyer's Journal remarked that migratory divorce often meant that the spouses might be validly divorced in one state but “upon remarriage, subject to prosecution for bigamy in another.”Footnote 185 This was close to the facts of the Supreme Court's Williams v. North Carolina decisions of 1942 and 1945.Footnote 186 Those cases did not concern the substance of domestic relations law. Rather, they were about the Full Faith and Credit Clause of the United States Constitution. In Williams I the Court overruled Haddock and abandoned forever the inquiry into which spouse was at “fault” for disruption of the “marital domicile” as a determinant of jurisdiction for divorce.Footnote 187 The Court instead held that jurisdiction was solely “dependent on the relationship which domicil [sic] creates and the pervasive control which a state has over marriage and divorce within its own borders.”Footnote 188 In other words, as long as the migratory state became the “domicile” of at least one spouse, it could grant a divorce, and a sister state had to recognize that decree.Footnote 189 “Fault” was irrelevant and no longer of constitutional moment. Williams II, however, created a caveat. If the first proceeding was ex parte (that is, one in which only one spouse appeared in court), the home state still had an opportunity to inquire into the veracity of the alleged domicile in the migratory state.Footnote 190 The latter ruling, however, did not change the beachhead for “no-fault” that the Supreme Court created in the law of jurisdiction.Footnote 191
The “Introduction” published with NAWL's bill did not rely on this implication of the Williams cases. NAWL proposed to control the migratory divorce phenomenon by uniform statute. The bill, therefore, incorporated a moderately long minimum period of 6 months’ “domicile” in order to file a divorce suit.Footnote 192 If adopted by many states, that would mean that the longest requirements in the strictest states would be substantially shortened, but that divorce mills with their much shorter times would be put out of business.Footnote 193 The divorce haven states were unlikely to sign on to this proposal.Footnote 194
As a matter of the substance of divorce grounds, NAWL sought to supplant “fault.” It proposed to replace the traditional model of divorce based on guilt, punishment, and adversarial confrontation with a more conciliatory and “therapeutic” approach.Footnote 195 The bill's move away from guilt and punishment, however, was quite cautious. It eliminated the adversarial styling of a divorce case.Footnote 196 It rephrased the traditional grounds for divorce in terms of less loaded terms and then applied the court's discretion to all these grounds.Footnote 197 The new bases for divorce were “mutual fidelity” (equivalent to adultery pursuant to the definition section of the bill); “mutual respect” (equivalent to extreme and repeated physical cruelty or mental cruelty resulting in physical injury); “mutual right of consortium” (willful desertion or habitual drunkenness or imprisonment); mental or sexual incapacity on the part of either party; or another spouse of either party living at the time of the marriage (bigamy).Footnote 198 The court could grant a divorce only if it found in the exercise of its reasonable discretion that any one of these grounds was established and that the “marriage cannot be preserved with benefit because its continuation is unbearable to the parties or unfair to the children, if any, and of no value to the State.”Footnote 199
The bill thus contained a mixture of old and new and can be considered only a transitional proposal. Whatever the nomenclature, the bill in essence required courts to find one of the old familiar grounds against one of the spouses.Footnote 200 On the other hand, it openly announced that marriages that were unbearable to the parties should not be continued.Footnote 201 In a critical step away from allowing “fault” to block a divorce, the statute also omitted the traditional “defenses” such as collusion, condonation, or recrimination. Section 8.01, however, instructed the court that in determining whether or not the named grounds existed it could not rely on the petitioner's own “misconduct.”Footnote 202 Therefore, the bill did not provide for unilateral divorce that could be obtained by either spouse acting on his or own desires regardless of circumstances or responsibility for occasioning the grounds.
Although the renamed grounds arguably constituted only a generous “restatement” of the law of divorce prevalent in many states,Footnote 203 NAWL believed that the conciliation provisions proposed a real change in divorce procedure.Footnote 204 For the women lawyers, this was the heart and soul of the bill's innovation.Footnote 205 The bill's “therapeutic” mandate was expressed by “conciliation” requirements that had become more mandatory in final form than they had been in a 1950 draft.Footnote 206 Courts were directed to attempt reconciliation “in every case” and to offer “conciliation services,” through “private and confidential consultation and conference with the parties.”Footnote 207 Before any “hearing may be set,” the divorce court could require the parties to use its court-attached conciliation services “where feasible” and could even mobilize outside social service agencies at its own discretion, provided that any report thereby generated did not become part of the record and that any facts in the report were not considered in a hearing “unless established by competent evidence, subject to the right of cross examination and to the right of presenting contrary evidence.”Footnote 208 One or more pre-hearing conferences, moreover, were mandatory.Footnote 209 They were to be conducted through “mediation” rather than through “contest.”Footnote 210
Ideas about “therapeutic divorce, administered by family courts composed of equal parts of sheriff and social worker, counselor and judge” emerged after World War II.”Footnote 211 Although not a new concept, very few family courts had been established before then.Footnote 212 Judge Paul W. Alexander, who succeeded Reginald Heber Smith as the chair of the ABA's delegation to the Family Life Conference of 1948, was the foremost proponent of the family court movement from the 1940s to the 1960s.Footnote 213 His theories substituted a marital illness paradigm in place of guilt or innocence and sought expert help to heal troubled families.Footnote 214 J. Herbie DiFonzo has described Alexander's approach as “coercive conciliation.”Footnote 215 New Jersey, one of those few jurisdictions that attempted the model, quickly abandoned it in 1957 as a “massive failure.”Footnote 216
NAWL's uniform bill, of course, was not a family court proposal.Footnote 217 However, it did use the “therapeutic” language that became increasingly popular after World War II. It was designed to readjust judicial machinery at a time when the old procedures had come into considerable public disrepute and no longer fit the temper of the times. As the Women Lawyers Journal’s “Introduction” to the NAWL bill explained, the charges and countercharges required under traditional divorce law threatened “decency and respectability” to the point where, if they had to separate, the ex-spouses were left with an unfortunate legacy of “indignity, hostility, bitterness and aggression.”Footnote 218 Existing divorce laws made the spouses into opponents who engaged in a battle over who was guilty and who was innocent.Footnote 219 Although it was impossible to eliminate the causes of “marital disharmony” because they were “deeply rooted in the nature of human beings, the mores of society and in our economic and social life,” new legislation might help to preserve a marriage or, if that were not possible, to provide a respectable divorce.Footnote 220
The “Introduction” further explained the proposed mechanism that courts would use to achieve the change in attitude and philosophy. The bill would substitute “conciliatory procedure” for punishment, much as juvenile courts were meant to do.Footnote 221 “Similarly” to those institutions, divorce courts “should endeavor first to ascertain the cause of the break-up and then to seek a remedy” with the help of experts such as “clergymen, psychiatrists, sociologists.”Footnote 222 With this assistance, the spouses might cease to be “squared off like prizefighters in a ring” but instead be “encouraged to collaborate in rebuilding for the future welfare of the family.”Footnote 223 The judge's role in all of this was to review the “complete family record” and to make a decision “with the family welfare in mind.”Footnote 224 If the judge concluded that divorce was necessary, then “it should not be because one party or the other is guilty, but because the marriage has become unbearable to the parties, unfair to the children, if any, and of no value to the state.”Footnote 225 In other words, the law would try to treat the failing marriage, or at least facilitate a “healing” divorce.Footnote 226
In support of its proposal, NAWL argued that its uniform bill did not constitute a major break with existing substantive law:
The proposed Bill is not as revolutionary as appears at first glance. It is new chiefly in its attitude and treatment of divorce and in the “therapeutic approach” which has been adopted. Otherwise, the Bill represents a restatement of the best case law and statutory law to be found throughout the forty-eight states.Footnote 227
Somewhat inconsistently, the proponents of the “therapeutic approach” also claimed that the reform was innovative in correcting the “outstanding defect” of “existing divorce laws in all states,” the necessity to prove innocence or guilt.Footnote 228
It is difficult to offer a cogent critique of NAWL's bill in the context of its own times without slipping into the habits of hindsight and ahistoricism. Clearly, like other critics of the day, NAWL was proclaiming as a “new” premise a view that was becoming widely accepted but that was not embodied in formal law yet.Footnote 229 The approach denied that divorce was a punishment to be awarded against those guilty of sin. Contemporaries more and more saw divorce as a mark of a marriage that had already failed. This analysis was reflected in the classic article written by NAWL's Ruth Wood in 1947, it was echoed in the 1948 report of the ABA's delegation to the Family Life Conference, and it was a key concept of the Uniform Divorce Law Bill that NAWL endorsed in 1952 and that it pressed on NCCUSL and the states in the years thereafter. As the bill's primary drafter Matilda Fenberg explained again in 1961, the reforms recognized that fault already was an outmoded basis for divorce.
The purpose of our Bill is not to make divorce easier or more difficult. It is simply to substitute truth for deception, common sense for technicalities, and to give the Courts real opportunities to prevent marriage failures by means of conciliation and treatment, rather than to punish failures in marriages.Footnote 230
Fenberg acknowledged that existing “penalty laws and laws prohibiting divorce are impractical and unsound.”Footnote 231 Indeed, participants would simply refuse “to enact or enforce or to obey them.”Footnote 232 In other words, the reforms would conform practice to reality, and have the added bonus of affording an opportunity for conciliatory intervention.
Versions of NAWL's model bill were introduced in a handful of individual states between 1953 and 1958, but without success.Footnote 233 On the national front, the politics of the legal establishment obstructed consideration. NAWL's attempt to present its uniform bill to NCCUSL was stymied when the commissioners told Fenberg that they could only receive bills or suggestions for bills from committees of the ABA.Footnote 234 But there was no Family Law Section at the time, and without it, NCCUSL was not going to consider NAWL's bill or act at all.Footnote 235 Together with its allies in the ABA, NAWL struggled for years before finally achieving establishment of the Family Law Section in 1958.Footnote 236 Pioneer Section Officer Clarence Kolwyck later exclaimed “And I hope the point is not missed in what I have said that but for women lawyers, we may not have attained sectionhood.”Footnote 237
With the creation of the Family Law Section, the Uniform Divorce Reform Bill in theory could surmount the artificial hurdles set by NCCUSL. In 1957, Fenberg explained how the NCCUSL process likely would affect the NAWL bill going forward.Footnote 238 She anticipated that as always, there would be changes in the bill throughout the drafting process.Footnote 239 NCCUSL would consider proposals, produce its own draft, and then present it to the ABA for its approval before distributing the final model law to be considered by state legislatures. Accordingly, NAWL's Bill was introduced to the ABA in 1960 and forwarded to NCCUSL at long last.Footnote 240 Fenberg understandably expected that “finally and of necessity” their proposal would “become the basis of any bill drafted by the National Conference of Commissioners on Uniform State Laws.”Footnote 241 But that did not happen. Instead, new initiatives that were not connected to NAWL's project overtook events. The California State Legislature began its own inquiry into divorce reform in 1963, the same year that Betty Friedan first published her feminist classic, The Feminine Mystique.Footnote 242 When some influential matrimonial attorneys became involved in NCCUSL's process in 1965 and a special drafting committee began work in 1967, there was no apparent link between that work and the NAWL proposal already on the table. Accompanied by deep fissures both within and without its ranks,Footnote 243 NCCUSL promulgated the UMDA in 1970, as amended in 1971 and 1973. Together with the California statute that had been enacted in 1969, the no-fault divorce revolution had begun in earnest.
NAWL and Divorce Reform in the 1950s: Revolutionary, Domestic, Quiescent?
What can be learned from the lost history of NAWL and its “greatest project”? First, where does it fit in the narrative of the history of divorce? In defense of its 1952 proposal, NAWL maintained that its “no-fault” reform was not so “revolutionary.Footnote 244 Twenty years later, the same question was asked about the no-fault revolution of the 1970s. Starting with the California law of 1969 and NCCUSL's UMDA of 1970, marital breakdown laws spread like “prairie fire.”Footnote 245 Despite the statutory transformations, some commentators have questioned whether no-fault divorce was designed to be radical at all.Footnote 246 Critics have argued that the changes only amounted to a formal and rhetorical assimilation of the law on the books to the law in action; that is, to the existing practice of collusive lawsuits and migratory divorce.Footnote 247 Although NAWL's 1952 bill stopped considerably short of incorporating genuine no-fault grounds, NAWL's avowed desire to use reform “to substitute truth for deception”Footnote 248 lends some credence to the “no-fault” is “no revolution” argument about the 1970s. The lost history reinforces the view that, whatever the ultimate consequences, the move to no-fault in the 1970s began as a “last gasp ” attempt by “conservative reformers” to retain judicial control over the burgeoning divorce rates that manifested after World War II, plateaued in the 1950s, and then surged to new heights in the 1960s.Footnote 249
By contrast to no-fault grounds per se, NAWL insisted that its procedural proposals for conciliatory and “therapeutic” divorce were truly innovative.Footnote 250 How does this part of NAWL's divorce reform story fit into the “domesticity” narrative that so often has been told about the 1950s? Elaine Tyler May called the 1940s and 1950s “a unique twenty-year era of domesticity” and Jessica Weiss also emphasized the “singularity of the 50s family.”Footnote 251 May linked domestic ideology to an “apolitical” and “therapeutic” approach.Footnote 252 Although NAWL's model of therapeutic divorce may be compatible with this account of family-centered domesticity in the 1950s, it does not support the claim that the decade's “singularity” shaped the call for divorce reform. The demand for legal reform had its own momentum. By the time of the postwar spike in the divorce rate in 1946, it already was clear that the central problem was that restrictive formal law did not match the much more liberal collusive practice. Insiders in the ABA shared NAWL's concerns about this disjunction, but committee meetings produced no “concrete outcome.”Footnote 253 NAWL, on the other hand, launched its initiative soon after World War II, when divorce rates were soaring, but then pursued it through the 1950s, when the pace leveled off. Therefore, its campaign for uniform no-fault reform appears unrelated to any phenomenon of heightened “domesticity” in the 1950s.
When no-fault finally broke through in 1969 and 1970, it was without most of the conciliatory and “therapeutic” procedures that NAWL so prized. California's proposal originally called for integration of “the [marital] breakdown principle with a comprehensive plan for marriage and divorce counseling to be made available through the family court in cooperation with private and community facilities.”Footnote 254 Even if “marriage counseling” did not work, the procedures then could be used for “divorce counseling,” especially where children were involved.Footnote 255 As enacted by the California Legislature in final form, however, the 1969 act dropped the entire apparatus of a family court, including professional staffing and counseling, and also limited procedural delays designed to encourage conciliation.Footnote 256 Similarly, after much dispute and negotiation in the process of drafting the UMDA, the National Conference of Commissioners made only minor concessions to the ABA's call for more court-involved conciliation and procedural delay.Footnote 257 It is no accident that the unsuccessful battle for those provisions was led by the ABA's Family Law Section, the entity that owed its very existence to NAWL's campaign in the 1950s and that shared its cautious values. In a sense, this defeat of the Family Law Section also amounted to a final repudiation of the spirit of NAWL's pioneering proposal. Nonetheless, both California's Family Law Act and UMDA left the judges in charge. They had final discretion to decide whether or not the marriage had broken down. Ironically, in the end, this had the practical effect of promoting unilateral divorce. Courts proved willing to take the word of only one spouse about the breakdown of the marriage and, therefore, to grant a divorce without the mutual consent of the parting couple.Footnote 258 In the aftermath of this unexpected outcome, the use of mediation and other nonadversarial techniques to resolve controversies related to divorce eventually spread, especially with respect to disputes involving children.Footnote 259
Along with “domesticity,” the decade of the 1950s also has been stereotyped as a time of “quiescence” for American women and of “doldrums” in the women's rights movement. What does the lost history reveal about feminism and divorce reform or about women's rights activism in the mid-twentieth century? There is no clear-cut answer to the first part of the question. Historically, favoring easier divorce was problematic for the women's movement. The 1848 Declaration of Sentiments listed divorce among its indictments of laws that oppressed women, but Elizabeth Cady Stanton failed in her effort to make divorce reform part of the women's rights agenda.Footnote 260 In the late nineteenth and early twentieth centuries, the close alliance between the women's suffrage and the temperance movements further complicated matters.Footnote 261 Thus, in contrast to efforts to reform the laws of marriage so as to make them fairer to women, divorce reform, historically, was not a necessary component of the feminist agenda.
As this study has shown, despite their long-standing preoccupation with divorce law, the women lawyers of NAWL also did not link their “greatest project” to an express demand for gender equality. Interestingly, the no-fault reformers who followed NAWL approximately 20 years later have conceded that even at the very cusp of the revived mass movement for women's rights in 1969 and 1970, they did not have gender equality in mind either.Footnote 262 Feminists, however, took part in some of the state battles about new rules of marital property distribution and alimony associated with no-fault reform. For example, a group of attorneys in New York held hearings in 1972 on the potential financial consequences of the proposals.Footnote 263 Betty Berry, the Coordinator of New York National Organization for Women (NOW)’s Committee on Marriage and Divorce, wrote an “Equal Rights Divorce Reform” bill that called for equal division of marital property.Footnote 264 She also was prepared to accept equitable distribution as incorporated in the UMDA instead, as long as any legislation supplanted the unfair common law rules of allocation by ownership of title.Footnote 265 Divorce reform, however, was not a priority for NOW at this time.Footnote 266 In Wisconsin, feminists who were “actively involved in the [divorce] reform effort and leaders in the successful ERA ratification effort…prevented enactment of a no-fault provision until legislators built financial protections for women into the divorce reform package.”Footnote 267
After the spread of no-fault statutes, the unexpected economic and social consequences became a feminist flashpoint. In 1985, sociologist Lenore Weitzman published a study of California's decade under no-fault. It quickly became “front page news.”Footnote 268 She claimed that no-fault amounted to unilateral divorce (rather than divorce by mutual consent) and deprived many divorcing wives of bargaining leverage.Footnote 269 Weitzman argued that combined with other accompanying legal changes, no-fault had an adverse effect on California's divorced women and their children.Footnote 270 Feminists and other family law experts have debated the accuracy and extent of the claimed link between the move to no-fault and these unfortunate outcomes ever since.Footnote 271
Although it may be hard to draw a direct line between early no-fault reform and women's equality theory, the lost history of NAWL's project leads to a more nuanced interpretation of women's activism in the 1950s. Traditional narratives of the history of the women's movement described two waves of heightened activity separated by a lull, including the 1950s. According to this view, the first stage began with the Woman's Rights Convention in Seneca Falls in 1848 and culminated in the passage of the Nineteenth Amendment in 1920. The second wave came with the revival of a mass movement in the mid-1960s.Footnote 272 In between these “waves” was a purported “doldrums” during which the women's movement was in a state of “abeyance.”Footnote 273 In their social movement history of the years between 1945 and the 1960s, Leila Rupp and Verta Taylor modified this discontinuous picture in one sense. They focused on what they called an “elite-sustained” movement consisting of “core” organizations that supported the ERA after 1920 and that continued to be active up to and including the 1950s.Footnote 274 They argued that these organizations provided continuity and a home for women's rights activists in the years of abeyance and provided an important “transition” from an earlier stage of the movement to that of the 1960s.Footnote 275 In particular, Rupp and Taylor examined the vicissitudes of Alice Paul's NWP, the center of support for the ERA that she drafted.Footnote 276 The authors concluded that NAWL also belonged in this small “pre-existing core” of the “elite-sustained” movement.Footnote 277
Rupp and Taylor's “elite-sustained” account defines women's activism in the postsuffrage middle years narrowly only in terms of support for the ERA.Footnote 278 Today, however, revisionist scholars no longer subscribe to a two-wave narrative.Footnote 279 They find that women's activism extended beyond the ERA's so-called “core” demand. Rather, it encompassed many types of feminists, including women who worked for gender equality in mixed-sex labor and civil rights organizations.Footnote 280 Even when they focus on traditional single-sex women's organizations, the no-wave scholars call into question the doldrums view of the years between suffrage and the 1960s.Footnote 281 This article considers NAWL in this newer frame, but on its own terms. It is of course true that NAWL endorsed the ERA in 1935 and made it a priority in the 1940s and 1950s.Footnote 282 It actively supported the amendment when the great majority of more progressive women's and labor groups opposed it because of its potential to jeopardize hard-won labor law protection.Footnote 283 Clearly, however, the highly divisive ERA was never the full sum of NAWL's agenda nor even, judging by the pages of the Women Lawyers’ Journal and the scope of NAWL's committees, the predominant focus of the work of the association.Footnote 284 This lost history demonstrates that even in a so-called “core” postsuffrage organization there was much more to their women's activism. The public and professional concerns of the women lawyers were wide ranging and their self-proclaimed “greatest project” of the 1950s was divorce reform.
As an example of NAWL's universe of concerns, consider its long-running fight against exclusion of women from jury service, a priority that it shared with most women's organizations across the full range of the spectrum and regardless of their position on the ERA.Footnote 285 Matilda Fenberg, who chaired NAWL's Uniform Divorce Reform Committee in the 1950s, also chaired NAWL's Committee on Jury Service in 1947.Footnote 286 Fenberg also was a prominent NAWL spokeswoman on the ERA.Footnote 287 Jury service was a natural corollary of the fight for suffrage and full citizenship under the law.Footnote 288 The issue persisted throughout the “doldrums” years, finally taking on a new shape in the 1960s under the influence of Dorothy Kenyon and Pauli Murray and their more radical civil rights perspective.Footnote 289 Judge Kenyon was “outspoken” in her opposition to the ERA.Footnote 290 Yet she maintained her long-time NAWL membership and chaired that organization's Committee on International Relations after World War II.Footnote 291 To a degree, then, NAWL provided a big professional tent for activist women who were not defined exclusively by their position on the ERA.Footnote 292
In the end, NAWL's function as a national professional outlet for beleaguered women attorneys suggests a different kind of link between their commitment to women's rights and their divorce reform project. Because of pervasive sex discrimination, female attorneys found it difficult to gain a toehold in the profession.Footnote 293 They were so invisible that it was difficult to obtain an accurate count of women lawyers in the 1950s.Footnote 294 Therefore, the women resorted to separate professional organizations such as NAWL.Footnote 295 Moreover, in contrast to their male counterparts, women lawyers in the mid-twentieth century chiefly specialized in divorce law, which was still true later during the years of the no-fault divorce revolution.Footnote 296 As Louise Raggio, the “dean” of Texas family lawyers and an active NAWL member explained, female attorneys were routinely denied opportunities outside of a narrow range of fields such as family law, a specialty that was among the “least-esteemed of the types of law practice, and thus more easily open to women.”Footnote 297 This channeling effect can be seen in the roster of NAWL's members. For example, in 1946–47, the NAWL Committee on Domestic Relations boasted individual members from nearly three quarters of the states and the District of Columbia, and there was just a slightly smaller section for juvenile law.Footnote 298 The only committee that exceeded this size was the one on “Jury Service for Women.”Footnote 299 The dozens of committees covering many other legal specialties were all significantly smaller, including the Legal Status of Women section that focused on the ERA.Footnote 300 These committee memberships provide some evidence of the opportunities and interests of women lawyers in the 1950s. It is clear why their expertise in family law was particularly important to the professional identity of women lawyers and to the members of NAWL. Louise Raggio maintained that family law was “a part of the history of women emerging as political beings in the United States.”Footnote 301 She argued that “the movements to abolish slavery, to get the right to vote, and to enact humane laws affecting the family are all intertwined and should be considered together.”Footnote 302 Raggio also observed that the ABA finally permitted NAWL to become one of its auxiliary legal organizations in 1943, when wartime changes in the profession were occurring.Footnote 303 In the words of Raggio, when NAWL “got their ‘vote and voyce’ [in the ABA] [they] … used this as a “bully pulpit” to further their programs.”Footnote 304
As has been discussed, NAWL's aspiration to influence the making of divorce law policy was thwarted. NCCUSL refused to consider NAWL's bill unless it was submitted by a section of the ABA. NAWL then labored successfully for the establishment of the Family Law Section.Footnote 305 Even then, however, the commissioners sidestepped the women lawyers’ bill entirely. NCCUSL undertook divorce reform only after elite male matrimonial lawyers decided to address it. In its own way, then, the story of NAWL's campaign demonstrates the continuity of women's activism in the “doldrums” era. It shows that even a so-called “core” and “elite” women's rights organization could have an agenda that was not centered on the ERA and that was impeded by the marginalization of women within their own profession. This study of NAWL and its “greatest campaign” teaches us about the history of divorce, the limits of the domesticity paradigm, and the continuity of women's activism in the doldrums. It is a lost chapter well worth recovering.
