Thursday, January 17, 2019

The Role of the National Women's Lawyers Association in Advocating No-Fault Divorce in the 1950s

Laura Oren, No-Fault Divorce Reform in the 1950s: The Lost History of the "Greatest Project" of the National Association of Women Lawyers, 36 Law & History Review 847 (2018)

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. From its Progressive era origins until today, NAWL has pursued a women's rights agenda within a professional framework.
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. 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).
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. In 1947, *849 NAWL voted “to draft and promote a bill that would embody the ideal of no-fault divorce.” 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.” In their view, it was “new chiefly in its attitude and treatment of divorce and in the ‘therapeutic approach’ which has been adopted.” “Otherwise,” they said, “the Bill represents a restatement of the best case law and statutory law to be found throughout the forty-eight states.”
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). 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. 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 *850 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. This article recovers NAWL's lost history and explores how it fits into the gaps.

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