All ages imagine themselves more enlightened—and at the same time, no doubt, more depraved—than their predecessors. Accordingly, we tend to exaggerate the moral distance between ourselves and the Victorians. The nineteenth century seems particularly remote to us in matters relating to sex. Since the turn of the century, the Western world is supposed to have undergone a "sexual revolution" which, for better or worse, irreversibly altered the way in which the relations between men and women were perceived. The "puritanism" of our ancestors, we suppose, gave way to sexual freedom—depravity, if you like—and the evidence for this proposition seemingly lies all about us: bikinis on the beach and skirts above the knee; obscenity on stage and screen; increasing license among adolescents; and, inevitably, in such a list, the "rising tide of divorce," as it used to be called. The fact that divorce is no longer novel or shocking merely testifies further, presumably, to the decay of the old order, the attitudes and institutions of an earlier time, which now evoke mingled nostalgia and contempt.
Divorce no longer shocks, but it is still a public issue, largely because the recent liberalization of the New York law (which previously limited grounds of divorce to adultery but which now makes a two-year separation additional grounds for divorce), together with the agitation preceding this change, focused attention once again on the absurdity of the divorce laws not only of New York but of most of the other states. But if divorce remains a political and a legal issue, it has not yet become an issue for sustained historical reflection. Studies abound, but practically all of them take for granted that the growing divorce trend is part of the "sexual revolution"; a symptom, therefore, of the decay of the family and of the whole complex of assumptions with which the old-fashioned family was bound up. It is precisely this premise, however, that needs to be re examined if we are to understand not only divorce and marriage but a whole series of related questions, which although they are not public questions in the conventional sense have an important bearing on the collective as well as the private lives of Americans. It is quite possible that easier divorce, far from threatening the family, has actually helped to preserve it as a dominant institution of modern society.
Only alarmists would argue that the family is literally becoming extinct. The question is whether or not it has radically changed its nature, partly as a result of the ease and frequency of divorce and partly as a result of other developments of which the frequency of divorce is a consequence. It is on this point that both scholars and laymen almost universally agree. The Victorian family, they believe, was patriarchal, based on a double standard of sexual morality according to which fidelity was demanded of the wife while the husband pursued his extramarital career of sexual escapades among prostitutes or expensive mistresses, depending on his social class. People did not marry for love so much as for the convenience of the families concerned; all marriages were in this sense "arranged." Divorce or annulment, when they rarely occurred, took place at the pleasure of the husband, the wife having no recourse in the face of her husband's indifference, infidelity, or brutality except the solace of religion and the sewing-circle society of women, fellow victims of a system which consigned them, it seemed, to perpetual subordination. Such is the picture of Victorian marriage to which the modern family is held up in striking contrast. Nowadays, even a President's daughter marries for love, a fact of which it is one of the functions of journalism ritually to remind us. The affectional basis of marriage presumably works to make the partners equals. The growing divorce trend, whether one attributes it to romantic illusions surrounding marriage or to sexual difficulties or to any number of other explanations, must therefore reflect, in one way or another, the new equality of the sexes. The fact that most divorce proceedings are now instituted by women would seem to confirm the suspicion that the relaxation of old taboos against divorce represents still another victory for women's rights.
Given these assumptions, the principal objection to the present laws is that they are an anachronism, a last refuge of Victorian prudery and superstition. The authors of a recent study of American divorce complain that "while a real social revolution has been going on affecting in a thousand ways the importance and relative permanence of marriage, the divorce laws have remained the same with only few minor exceptions" The law of divorce, in short, is seen as a notable instance of "cultural lag," and the most impressive argument for reform, accordingly, is that law should not be allowed to diverge so far from practice. Most Americans apparently believe that an unhappy marriage is worse than no marriage at all and that the best way of ending an unhappy marriage is divorce by mutual consent. Yet the laws compel them to undergo the distress and humiliation of an adversary proceeding in which one party has to file charges against the other, even to fabricate them, with disastrous moral and emotional consequences for everyone concerned.