Nicole Hester/Ann Arbor News/AP
Steven Crowder speaks during his protest against Gov. Gretchen Whitmer at the Michigan State capitol in Lansing, Mich., on Friday, Oct. 2, 2020. Crowder focused on Whitmer's decisions regarding seniors with COVID-19. (Nicole Hester/Ann Arbor News via AP)

Editor’s Note: Caroline Shanley is a writer and graduate student in public history at American University, where she researches gender, sexuality and legal history in the 19th century. The views expressed here are her own. Read more opinion on CNN.

CNN  — 

Prominent right-wing commentator Steven Crowder made waves recently when he announced his divorce from his wife, filed in 2021. Emphasizing the fact that his ex-wife initiated the process, Crowder emphasized, “This was not my choice…that is completely permitted.”

Courtesy Caroline Shanley
Caroline Shanley

As reported by Rolling Stone and others, this news comes on the back of recent proposals by conservative-dominated state legislatures to overturn no-fault divorce in Texas, Nebraska and Louisiana. No-fault divorce – meaning that the filing spouse is not required to show wrongdoing by the other spouse as the reason for dissolution – first began in 1969, when then-Gov. Ronald Reagan of California signed the first law of its kind in the US. Today, every state and the District of Columbia offers no-fault divorce.

As these bills seeking to roll back a spouse’s ability to file for divorce have surfaced, so too has rhetoric about the alleged evils divorce presents to the stability of the American family and women’s agency.

This is hardly surprising. Panic over the “rising” divorce rate – real or imagined – has long been an unjust scapegoat for societal decay. Echoed in the courtrooms, newspapers and other sources of commentary in the 19th century, this conflation of divorce and the doom it spells for families is as American as apple pie.

Women of the 19th century had limited rights, so divorce was one avenue they could assert their independence. Women of the 21st century are currently living through direct, concerted attacks to their rights including reproductive choice. This renewed assault on divorce shows how quickly purported concerns about marriage can become a proxy for a conservative agenda that wants to reinforce women’s subordination to men.

This panic is certainly misplaced if not outright malicious, and it’s worth understanding its parallels with the past. Throughout history, the way people talk about divorce reveals a great deal about the values of the groups who oppose it.

The history of divorce in the US is quite unique because divorce was all but inaccessible in England prior to the Revolutionary War; only an act of Parliament could grant divorces. Beginning with the Puritan settlement in 17th-century Massachusetts, colonies and eventually states individually developed their own grounds. Long before no-fault divorce as we know it today, divorce was fault-based, meaning aggrieved couples had to levy accusations of wrongdoing against one another.

This adversarial system, pitting couples against one another, made 19th-century courtrooms sites of immense drama and media attention. Their scandal is exactly what allured onlookers from across the country. In her book on the history of marriage in the US, historian Nancy F. Cott has observed how “transcripts of juicy divorce trials, especially those involving elite parties, were rushed into publication.”

While states permitted divorces, it did not mean they were encouraged. In 1847, the Missouri Supreme Court noted that “too great a facility in obtaining divorces is exceedingly injurious to the good morals and happiness of domestic life.” Another conservative pundit, Ben Shapiro, likewise condemned divorce as the root cause of “family breakdown” earlier this year.

As states expanded grounds for divorce, so did the fear of widespread divorce. On this very sentiment, a journalist for the San Francisco Chronicle in 1854 remarked that “marriage among us seems to be regarded as a pleasant farce.” Commentator Matt Walsh made similar comments in February 2023, claiming that divorce has “downgraded the marital contract to something less binding than the agreement you have with your cell phone carrier.” To these critics, divorce desensitized the importance of marriage rather than providing an outlet for those hoping to escape distress.

This sentiment echoes one that was shared by many in the latter half of the 19th century as divorce rates did increase. Judges, legislators and lawyers were also confronted with the problem of migratory divorce, the phenomenon of couples traveling to states with less restrictive divorce grounds. In fact, my home state of Indiana became known in the 1850s as a “divorce mill” because its lax divorce laws attracted disgruntled couples from all over.

This steady rise in divorce rates that naturally arose out of states making their own rules was most troubling to contemporaries in the mid-19th century. But worst of all to those concerned over the integrity of the family unit was the sheer fact that the majority of divorce seekers and petitioners were women. And this is a fact that rings true from the early days of the 1800s to modern day.

Unlike anything else in the 19th century, divorce allowed women to disrupt their otherwise secondary status in society. And it is precisely this discomfort over women’s autonomy that continues to fuel conservative outrage over the matter. In present day, divorce can be a remedy to anyone. But it’s because of its potential to benefit women that it arouses controversy.

Before his role in writing the Declaration of Independence, Thomas Jefferson counseled a divorce case in colonial Virginia. His rationale exhibited the liberty divorce could afford to women. In fact, he supported it as a remedy specific to women because unlike men who had other pathways for economic and social security, women were “confined and subject” to the household.

Elizabeth Cady Stanton, feminist and eventual leader of the suffrage movement, was a fierce advocate for divorce. While other early feminists in the 1870s disagreed with Stanton’s embrace of divorce in all circumstances, she maintained that “it is a sin against the…family…to live together in the marriage relation in continued antagonism, indifference, disgust.” Some historians contend it was easier for women’s rights crusaders to embrace suffrage because voting rights could be pitched as compatible with traditional family dynamics while divorce could not.

While, for example, the Nebraska GOP’s current platform opposes any measure that would “intrude unnecessarily on the rights of the family” or “contribute to the dissolution of the family,” 19th-century pro-divorce reformists and actors countered these sorts of arguments in a way that demonstrated the dangers for women forced to stay in unhappy, potentially abusive unions.

Get Our Free Weekly Newsletter

In my own research, I have uncovered several divorce cases that the DC Circuit Court tried between 1860 and 1863. In the 1861 case of Jane Elizabeth Martha Mackall and Brooke Mackall, several of their 10 children gave depositions detailing the incessant abuse their mother suffered from her husband. Jane’s petition charges that “she believes her life is endangered and as such…shall receive the protection of this Court.” In this instance, as is the case of many of these suits, divorce stands as a way for women to try and preserve their family’s happiness and stability.

Since Crowder’s initial video, footage surfaced showing him shouting abusive insults at his wife (Crowder maintained that the video was “misleadingly edited”). For the wider public, it’s clear to many why his wife might have pursued divorce as her remedy. But for the remaining conservative critics, divorce remains an issue worth relitigating – with the goal of its destruction and the further suffering of women in bad relationships.

The strategies of those who want to ensure divorce stays a legal and readily accessible avenue may vary. As history reveals, divorce evolved over the 20th century into the no-fault system we have now. However, this current iteration of the divorce-driven moral panic over families is all too familiar and reflects a distinctly anti-woman, anti-choice agenda of its detractors.