RIP: Herma Hill Kay, Creator of No-Fault Divorce, Destroyer of Traditional Marriage

By Alan W. Cohen

There is one law that neither state legislatures, nor the United States Congress, can destroy. That is the Law of Unintended Consequences, the law that suggests that drastic changes in the status quo might sound good on paper, but in reality lead to disastrous results. So it was with no-fault divorce, and its matriarch, the late University of California-Berkeley law professor Herma Hill Kay, who died last week at the age of 82. Kay, who was three times married, felt that the patriarchal society had imprisoned in her marriage, and wished that all women could be freed to make their own choices. Kay’s problem was not that she was wrong, but that her solution was completely one-sided, creating an full scale war on men that would be the focal point of second wave feminism.

Sharon Presley explains that in a 2015 essay that all Kay and the second wave feminists did was exchange one patriarchy for another. “Libertarians fail to see how women—or men—can be free of domination when they are dominated by a coercive government. If one of the goals of feminism to achieve a society in which women are free to make their own decisions about their own lives independent of the coercive domination of men, we fail to see how a government currently dominated by men is an improvement, let alone feminist.” Presley cites a discussion paper of the Association of Libertarian Feminists that stated in 1975: “…turning to the government just changes the sort of oppression women face, not the fact. Instead of being overburdened as mothers or wives, we become overburdened as taxpayers since child-care workers, doctors, etc., have to be paid by someone unless they are to be enslaved also! Turning to the government to solve our problems just replaces oppression by patriarchs we know—father, husband, boss—with oppression by patriarchs we don’t know—the hordes of legislators and bureaucrats who are increasingly prying into every nook and cranny of our lives!”

As I explain in my new book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce, state and federal coercion has no constitutional validity, but rather is based on the patriarchy of the Anglican Church, where a woman was property of her husband, and confined as the United States Supreme Court said in Bradwell v. State in 1873 to the role of wife and mother.  Religious freedom is forever intertwined in marriage and parenthood, and the state and federal adoption of the canons of a particular religion are directly counter to our Founding documents. Yet, for a century after, the price of confining women to their predetermined role bore squarely on men who, as modern day writers such as Camille Paglia have pointed out, were pushed to take on professions that could daily end their lives And, thanks to Kay, men continued to pay the price as all fifty states adopted her solution, one that permitted women freedom, but continued to place the financial burden of marriage and eventual divorce on both their husbands and their children. Further, as psychologist Barbara Whitehead pointed out in her iconic study, enshrined in her book, The Divorce Culture, women were the instigators of divorce 85 percent of the time, and their reasons had little to do with the actions of their husbands. Rather, women sought some form of nirvana that they called happiness, a place that Aristotle tells us exists only after a lifetime of achievement.

Instead of freedom, all that Kay achieved for women was weakening of both men and women. Permitting the easy escape from a contractual commitment without dire consequences greatly diminished the nature of the bond. Marriages morphed from a lifetime choice to a temporary one. Marriage is hard work. As a result of the no fault divorce, first women, and later men, decided that it is not really worth the effort, and pale in comparison to the emotional strength of their ancestors. Can you picture the spoiled snowflakes of today living in the harsh realities of the 19th Century?
They wouldn’t make it through a single day without folding. Life is not a fantasy. Chick flicks remain stalwart in their romantic belief that the wedding is the beginning rather than the end of the story of life happily ever after. Reality is far from it.

Camille Paglia puts it best when she writes, “women have lost the daylong companionship and solidarity they once enjoyed with other women when they ruled the private sphere. … An enlightened feminism, animated by a courageous code of personal responsibility, can only be built upon a wary alliance of strong women and strong men.”

From her pen to God’s ears.

Alan W. Cohen is retired after more than 25 years as a family law attorney. He is a  blogger and author. He is also the author of the 2015 book, America Solved: A New Family for the 21st Century.

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