Divorce in the Movies

Legal Studies Forum
Volume 24, Number 2 (2000)
reprinted by permission Legal Studies Forum

DIVORCE IN THE MOVIES:
FROM THE HAYS CODE TO KRAMER vs. KRAMER

MICHAEL ASIMOW*

Movies and other media of popular culture serve as windows to the social history of the time when they were produced.¹ By watching old films, we transport ourselves back to the bygone days when the film was made. We learn what filmmakers were concerned about as well as what they thought ordinary people were concerned about. Even though filmmakers must refract institutions, events and character in order to compress, simplify, and entertain, what remains is still a valuable artifact. Film history helps us understand what earlier generations thought about business, politics, law, marriage and the family, gender relationships, sexuality; it furnishes insight into the attitudes, hopes, fears, and dreams of ordinary people. It allows us to observe the institutions of society in action. Studying the content of films as social history is important for a second reason: people learned about all these things by going to the movies. Films have always had a profound impact on people’s opinions and beliefs (more so, of course, before the advent of television). To some undefined extent, the films of a time made history as well as reflected it.²

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These claims–that films are worth studying because they both reflect and make history–fail miserably when applied to American films about marital breakdown and divorce during the middle third of the twentieth century. By studying films made between the mid-thirties and the mid-sixties, we learn nothing about the pathologies of marriage, popular attitudes toward divorce, or the institutions of family law. What little those films tell us now, and what they told film audiences then, was wildly wrong.
This Article explores the reasons for this striking anomaly. It examines the divorce phenomenon in real life and in movies before, during, and after the system of movie self-censorship embodied in the Hays Code. The article culminates in an analysis of the films relating to divorce in the late 1970s and early 1980s, concentrating on Kramer vs. Kramer (1979),³ an outstanding and definitive film that treats all the elements of the divorce process seriously and which pointed the way for divorce-related films of the present.

I. MARITAL BREAKDOWN AND DIVORCE IN FILM

Marital trouble and divorce are unpleasant but ever-present realities of modern life. These days, approximately one of every two first-time marriages in America ends in divorce; and the prospects for later marriages are even worse. Similar patterns apply throughout the first world. But this is nothing new. During the twentieth century, divorce has been a social and economic phenomenon of epic proportions. The divorce rate has advanced steadily, particularly after World War I and throughout the 1920s. It fell during the Depression but spiked after World War II, stabilized (though at a much higher rate than before the War) during the 1950s, and shot upwards throughout the 1960s, 70s and 80s.4 Divorce law reform was a subject of constant controversy during most of the century.⁵
The reasons for the relentless advance in the divorce rate are not difficult to discover.6 The social stigma attached to divorce diminished steadily; the more people that got divorced and survived the experience,

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the more others wanted to follow in their footsteps. Divorce laws were liberalized.⁷ Perhaps most important, in the early part of the century and especially between WWI and WWII, a new paradigm for marriage took hold.⁸ In the old days, most people viewed marriage as a matter of social status and a lifetime commitment to furnish mutual financial and homemaking support. Long-term love and happiness might be an unexpected and welcome byproduct, but few people thought such things were essential.⁹ Under the new paradigm, people came to believe that marriage should bring happiness and personal fulfillment. Since marriage frequently fails to provide happiness and fulfillment to one or both partners, a great many marriages fail to meet expectations. Such marriages are doomed to disintegrate and divorce generally follows.
At the same time, women reevaluated their roles and came to believe that they were socially and economically equal to men; they rejected the idea that men and women each inhabited their own spheres, the woman at home and the man in the world. Women’s economic opportunities improved, making divorce a realistic option for many more women. Women renounced the sexual double standard. They believed they were entitled to escape from dreary, loveless, or abusive marriages, and they thought they could manage economically without male support. As more and more women internalized these feminist sentiments, more of them decided to leave their marriages.¹⁰
The eternal process of marital breakdown and divorce is full of dramatic possibilities. During the pre-divorce phase, the parties become increasingly incompatible and unhappy in their lives together. Frequently, there are complex and clandestine love affairs outside of marriage; deception, jealousy, and betrayal; emotional upheaval; disruption of the lives of children; and economic warfare. The routine of everyday life is shattered. During the post-divorce phase, one or both parties may find themselves physically and emotional isolated; others turn to promiscuity. Forced out of the shelter of the household, many women find satisfying new careers; others find that the world of work

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holds nothing for them. Often one ex-spouse’s standard of living rises while the other’s plummets.¹¹ One partner’s true personality blooms when freed from the stifling constraints of marriage; another’s joy of life is snuffed out. A high divorce rate insures that there are plenty of complex blended families with multitudes of step-children and ex-spouses.
This sort of highly dramatic material should be the subject of countless film scenarios, right along with such staples as romance, love, marriage, and childbirth. After all, a high percentage of adults have been divorced at least once; everyone else has friends or relatives that have been divorced. A substantial percentage of young people have experienced their parents’ divorce. All of these people can empathize with the travails of fictional characters whose marriages disintegrate. And they should, therefore, be willing to buy tickets to dramatic or comedic movies that center on divorce.
These days, movies routinely dwell on the emotional and financial prequels and sequels to divorce. Divorce is the obvious and natural platform for numerous modern film stories: Living Out Loud (1998) focuses on the loneliness of a divorced woman; Husbands and Wives (1992) explores the struggles of two newly divorced couples; As Good As It Gets (1997) deals with the difficulties of single parenthood; Music of the Heart (1999) features a divorced woman who, by necessity, starts a fulfilling new career; Mrs. Doubtfire (1993) centers on a father’s unusual tactics to live with his kids; Stepmom (1998) deals with the travails of two moms, the kids, and the dad; The First Wives Club (1996) features a group of embittered ex-wives out for a little revenge; a black woman is abandoned by her husband for a younger white woman in Waiting to Exhale (1995). And there are countless others.

II. THE HAYS CODE, PRODUCTION CODE ADMINISTRATION, AND THE TREATMENT OF DIVORCE

But it was not always such. The remarkable fact is that for more than thirty years divorce was nearly blotted off the screen. From 1934 to 1968, Hollywood worked under a system of rigid self-censorship. Even though countless “women’s movies” were made during those years,¹² the realistic treatment of divorce was mostly off-limits.

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Early Efforts at Governmental and Industry Censorship

American movie censorship has a long and infamous history.¹³ During the silent era, some cities (especially Chicago) engaged in governmental censorship of films.¹⁴ During the 1920s, in the wake of some spectacular Hollywood scandals, numerous state and local governments maintained censorship schemes¹⁵ and many others considered whether to adopt them. Governmental censorship was entirely legal during those years. The Supreme Court held in 1915 that prior censorship of films was constitutional since the movie business was not entitled to freedom of speech or press.¹⁶ This decision was not overruled until 1952.¹⁷

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     Around 1909, the movie industry engaged briefly in self-censorship.18 In the early 1920s, Will H. Hays,¹⁹ the director of the newly formed Motion Picture Producers and Distributors of America (MPPDA), lobbied hard against governmental censorship and tried to build bridges to various private groups interested in cleaning up the movies.²⁰ At first, Hays managed to co-opt these groups and to chill the drive toward government censorship. At the same time, he tried to head off problems for the industry by persuading studios to clean up films or not to adapt certain books or stage plays into film.²¹
     Around 1927, pressure for government censorship began building again. Religious groups became more fundamentalist in their orienta-tion and Hays’ efforts to bring the industry’s critics into the tent began to fail. This trend coincided with the emergence of sound films, which allowed filmmakers to produce much more shocking and offensive films than was possible with silent film technology. State and local censorship boards reacted accordingly, slicing films to ribbons. Theater owners protested about the content of the films (which exposed them to local censorship and boycotts).²² Antitrust legislation or prosecution against the big studios became a credible threat.
     Responding to these ominous developments, Hays promulgated a list of “Don’t’s and Be Carefuls” in 1927.²³One provision called for exercising special care in the manner in which certain subjects were to be treated “to the end that vulgarity and suggestiveness may be eliminated and that good taste may be emphasized.” One of the subjects that called for special treatment was “the institution of marriage.” The newly formed “Studio Relations Committee” (SRC), headed by Colonel

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Jason Joy, was charged with enforcing the 1927 Code. Despite Joy’s efforts, the 1927 Code was widely ignored and had little effect.24 Once more, the industry was in trouble; government censorship was on the rise, Congress considered antitrust legislation aimed at the industry, and religious groups were out for blood.²⁵

The Adoption of the Hays Code and the Production Code Administration

In 1930, the “Hays Code” was born. It was drafted by Martin Quigley, a respected Catholic layman and longtime activist for decency in films, together with Daniel Lord, a Jesuit priest and dramatics professor. Legendary M-G-M producer Irving Thalberg also had a hand in drafting the Hays Code. Hays promptly embraced this document and the MPPDA adopted it in March, 1930.²⁶ Despite enforcement efforts by the SRC, the Hays Code was ineffective. Films remained sexy and violent because the SRC had little actual power to change the creative and financial decisions of producers.²⁷
During the early 1930s, the Depression struck Hollywood like a freight train. A great many people no longer had disposable income with which to buy tickets. At the same time, radio cut deeply into the audience for movies.²⁸ Ticket sales plunged.²⁹ The large theaters owned by the big studios became white elephants as audiences dwindled. Meanwhile, the studios (as well as theaters) had to make massive capital investments in converting to sound.³⁰ By 1933, several studios were bankrupt and the industry was in disarray. Informal enforcement

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of the 1930 Code was futile in such dire economic conditions, because the studios simply could not resist the temptation to produce ever more lurid films that might attract customers into empty theaters.
Meanwhile, a variety of powerful pressures to clean up the movies converged simultaneously. Catholic clerics disillusioned with enforcement of the 1930 Code formed the National Legion of Decency.³¹ The Legion credibly threatened nationwide boycotts of films it considered to be indecent or even of all films. A Catholic-led boycott of Philadelphia theaters virtually closed them down. In April, 1934, millions of people (by no means all Catholics) signed pledges to observe the Legion’s boycotts.³² The Motion Picture Research Council released its quasi-scientific study Our Movie-Made Children, asserting that films were ruining the morals of young people.³³ State and local censorship was becoming ever more intrusive and a federal censorship regime became a very real possibility.³⁴
The industry caved. Hays announced formation of the Production Code Administration (hereinafter referred to as the “PCA”) which was designed to enforce the 1930 Code through a rigid system of industry self-censorship. This new scheme went into effect on July 11, 1934.³⁵ The PCA had absolute power to approve, censor or reject movies made or distributed by the studios.³⁶ The PCA was headed by one of Hays’ employees, a tough and able Catholic layman named Joseph Breen.

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Breen, who was well versed in all aspects of the motion picture business, ran the PCA from 1934 until 1954.³⁷ The 1934 announcement launched a system of industry self-censorship that lasted 34 years. During much of that period, producers could do little but accept the PCA’s decisions, since it was impossible to get financing for an unapproved project or to release a picture that lacked the PCA seal of approval.³⁸
The PCA exercised power over all phases of the film production process. It reviewed the decision to acquire a particular book or stage play for adaptation; it often reviewed the basic story before the script was written; it would scrutinize every word of the script, often demanding deletion of lines, scenes or action. Double entendres or sexual references were ruthlessly pruned. There were further conferences during production so that any changes made in the script, as well as lyrics, costumes and sets, could be observed and passed on. Producers would often shoot “protection shots” of particular scenes in order to have a backup if the censors demanded deletion of the preferred version. The finished version was previewed by the same two staff members who worked on the script and a third member who came to it with a fresh mind. The censorship process often triggered arduous and heated negotiations over plot or dialogue or the amount of visible female anatomy.³⁹
Breen and his staff reviewed each individual film with what seems to us today an incredible attention to detail. As Gerald Gardner writes: “The Code became the Bible of Joe Breen and his disciples at the Hays office. After reviewing a screenplay for a forthcoming film . . . Breen would cite the code as holy writ. In its name ministers would be turned into laymen, fade-outs would be turned to dissolves, lines of dialogue

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would disappear, scenes would be moved from bedrooms to patios, prostitutes would be turned into dancers–all in the name of adherence to the code.”⁴⁰
Despite initial resistance, the movie industry came to embrace the Code and the PCA.⁴¹ While producers found it annoying and inconvenient to deal with the censors’ demands, the status quo had its advantages. A film with a PCA seal of approval was likely to be left alone by state and local censorship boards. The Catholic Legion of Decency, and other religious or secular pressure groups, were unlikely to condemn the film. At least some foreign censorship boards also deferred to the PCA.⁴² In short, the Hays Code was great public relations for an industry that badly needed an image facelift. Even more important, the cleaned-up pictures, led by Shirley Temple movies and films based on great novels, also cleaned up at the box office; the studios started earning big profits despite Depression conditions for everyone else.⁴³ All this insured the stability of the censorship scheme.

The PCA as a Self-regulatory Administrative Agency

In many respects, the PCA functioned like a government regulatory agency. A number of important federal agencies, such as the Interstate Commerce Commission, the Federal Trade Commission and the Federal Communications Commission, were created prior to the 1930s. Congress intended these agencies to solve particular economic and social problems that could not be adequately dealt with through the market, the common law, or existing government departments.⁴⁴ Under

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prevailing administrative law theories of the time, the way to solve problems of this sort was by turning them over to experts, granting the experts broad discretion, and shielding the experts from political influence and judicial meddling.⁴⁵ The pre-New Deal agencies provided the model to which President Roosevelt and Congress turned to solve the problems of the Great Depression. Under the New Deal, such traditionally market-oriented functions as corporate finance, labor relations, agricultural pricing and production, banking, and many others fell under federal government control. Congress launched Social Security and the WPA put millions of people to work.
Shortly before the creation of the PCA, the National Industrial Recovery Act of 1933 (NIRA)⁴⁶ placed all of American business (including the movie industry) under the control of a single administrative agency – the National Recovery Administration (NRA).⁴⁷ NRA functioned by adopting codes regulating the business practices and labor relations of entire industries. Usually these codes were first negotiated within particular industries and were then rubber-stamped by NRA. Thus the Hays Code and the PCA functioned in a manner similar to a regulatory agency, particularly one adopted under NIRA. While NIRA soon was invalidated by the Supreme Court,⁴⁸ the movie industry’s production code remained in effect for 34 years.
The PCA that administered the Hays Code was, of course, an instance of private self-regulation rather than government regulation.⁴⁹ However, the public-private difference is less sharp than might appear at first glance. Although we imagine that industry always resists government regulation, this is often not the case. Many government

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agencies are created with the enthusiastic support of a particular industry. The industry may seek regulation to bring order to disorderly markets or to limit competition. It may accept regulation to fend off private litigation or to head off an even more intrusive regulatory scheme than the one actually adopted. For example, the FCC was created in 1927 with the enthusiastic backing of the radio industry to bring order out of chaos on the airwaves and to protect the investment of established broadcasters from interlopers.⁵⁰
The movie industry created the PCA for similar reasons.⁵¹ It viewed self regulation as a lesser evil than state, local, and foreign government censorship or boycott threats by the Legion of Decency. In addition, the industry was impelled by more noble concerns of professionalism; many in the business felt a genuine impetus to start putting out better pictures and getting rid of some of the sex and violence typical of the early 1930s. Such pictures might improve the industry’s image and bring people back into the theaters. The industry believed that a tightly administered regulatory scheme was the only way to achieve this goal, because unregulated competition produced a “race to the bottom.” In an unregulated environment, studios had an irresistible impulse to release ever more sleazy or violent pictures.⁵² This is a perfect example of the sort of market failure that frequently led to the creation of new regulatory agencies.
Like a government regulatory agency, the PCA was created by and drew its powers from a document of superior authority. The formal decision in 1934 by the MPPDA to launch the PCA delegated regulatory power to that body; the 1930 Hays Code established the policies it was to enforce. Like many administrative agencies, the PCA adopted interpretive rules to supply guidance in areas where the Code was unclear.⁵³ Like government licensing agencies, the PCA

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staff reviewed all scripts and negotiated changes with producers.⁵⁴ Like an administrative judge, Breen and his successors adjudicated disputes between the staff and producers that had not been resolved through such negotiations.⁵⁵ The PCA kept careful records of each of its decisions in order to maintain consistency; thus it used a sort of common-law precedent system in its informal adjudication.⁵⁶ An appellate mechanism existed whereby producers could appeal the PCA’s rulings (although the right to appeal was seldom exercised and still less often successful).⁵⁷ And like government agencies with power to issue licenses, zoning approvals, or cease and desist orders, the PCA had the power of coercion; it enforced its decisions by denying a certificate to unapproved productions. Thus the PCA, a private self-regulatory body, functioned with all the bureaucratic rigidity and coercive power of a government regulatory agency.

The Decline and Fall of the Hays Code

In the 1950s, the Code became steadily less effective. During that decade, the movie industry was losing audience to television; movies had to offer something that audiences couldn’t see on the small screen. Moreover, foreign films dealing more explicitly with sex were freely exhibited at art theaters without the PCA’s seal of approval. In 1952, the Supreme Court invalidated government censorship of movies,⁵⁸ thus removing one of the main reasons for the establishment and mainte-nance of the Code. In 1953, United Artists released Otto Preminger’s

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The Moon Is Blue without the PCA’s seal;⁵⁹ the film did well at the box office, which shattered the belief that a major production without the seal was doomed. Breen retired in 1954; the new PCA director, a long-time staffer named Geoffrey Shurlock, was less censorious and more flexible than his predecessor.⁶⁰ The Code was revamped and liberalized in 1956 and again in 1966,⁶¹ by which time an increasing number of pictures produced by major studios were being released without the PCA’s seal of approval.⁶² The PCA’s system of self-censorship lingered on until 1968 when recently appointed industry czar Jack Valenti finally ditched it.⁶³ Valenti put in place the ratings system, which survives in altered form today.⁶⁴

Divorce and the Hays Code

Today, the Hays Code, if remembered at all, is associated with the idea that movie crime (unlike the real thing) could never pay. We chuckle at the Code’s restrictions on the explicit discussion or depiction of sex or of the absurd degree of pre-marital chastity that the PCA

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insisted on. Married couples appeared only in separate beds⁶⁵ and bathrooms seemed to lack toilets.⁶⁶ But the rules prohibiting explicit treatment of sex never prevented the movies from dealing with sex.⁶⁷ Things had to be suggested, not spelled out, but everyone understood what was happening. The censors required only that the subject be treated discreetly and that those who engaged in extra-marital sex somehow be punished for it. This was an example of the rule of “compensating values” which was a mainstay of Code enforcement. Under the “compensating values” approach, crime or illicit sex could occur but those who engaged in it had to receive retribution.⁶⁸
Crime and sex, handled with discretion, remained permissible subjects for the movies–how could it be otherwise? But there was a group of subjects that were wholly ruled out as thematic material. As long-time PCA staff member Jack Vizzard put it, “The Code was an instrument designed to present reality on the screen not as it was, but as it should be. Its purpose was to protect audiences from the reality out of which they entered the theater, and into which they were going to return.”⁶⁹ The forbidden subjects included abortion, miscegenation, contraception, or homosexuality,⁷⁰ as well as divorce. These forbidden themes clearly reflect Catholic teachings–hardly a surprising observation considering the identity of the authors of the Code and the reasons for its adoption.⁷¹

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If a normative position is needed in this Article, here’s mine: reasonable people can differ about the appropriateness of self-regulatory censorship that is intended to insure discreet, tasteful treatment of themes like sex and violence or to prevent unduly tasteless language. Obviously, the contemporary film rating system is a milder version of industry self-censorship; it is appropriately designed to grade pictures according to the degree of explicit sex, violence, and language. The rating system helps consumers make intelligent choices between films and helps keep children away from inappropriate pictures. But I object to censorship that rules out serious treatment of important issues because a particular religious group wants to keep those issues off the screen. During the years the Code was in effect, film was by far the most important instrumentality of popular culture. Divorce is a common and legal form of human behavior, one which filmmakers are entitled to treat imaginatively. Similarly, audiences are entitled to choose films dealing with this aspect of human relationships.
The ban on serious treatment of divorce themes was not explicit in the Hays Code. It was derived from this language: “the sanctity of the institution of marriage and home shall be upheld.” The sanctity of marriage provision was interpreted by the PCA to mean that people normally didn’t get divorced in the movies. If absolutely necessary, divorce could occur; under Breen’s guideline, divorce was permitted “only for sound reasons, as a last resort, and never lightly or flippantly.”⁷² As an example of the PCA’s attitude toward divorce, consider the comments made in reference to whether a film could be adapted from a book called The Divorce of Marcia Moore. The PCA strongly disapproved of the project because the book “sets forth the proposition that divorce is the desirable solution for marital maladjustments. . . . This basic concept, coupled with the light attitude toward marriage and its obligations and the acceptance of adultery, all add up to a flagrant violation of the provision of the Code which requires that the

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sanctity of the institution of marriage should be upheld.”⁷³ Needless to say, the studio abandoned the idea of making a film from this book.

III. DIVORCE IN THE PRE-PCA ERA

At least some of the unpleasant aspects of marital disintegration and divorce were shown semi-realistically in pre-1934 films. A large number of silent films dealt with issues of marital breakdown, sexual infidelity, and divorce.⁷⁴ Early films in the sound era were exceptionally candid about issues relating to gender roles and sexuality whether made before or after adoption of the 1930 Hays Code. Women who engaged in premarital or extramarital sex, or who made use of their sexual powers to get ahead, were not always punished for their misdeeds.⁷⁵

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Marital breakdown and divorce appeared frequently in the sound films of the early 1930s.⁷⁶ In the aptly named The Divorcee (1930), for which Norma Shearer won an Academy Award, Jerry and Ted have a love marriage. Ted ruins it with a casual infidelity that Jerry discovers. He assures Jerry that his infidelity meant nothing, but when she reciprocates and tells him it means nothing, he can’t tolerate it and walks out – a powerful assault on the double standard. Jerry tells him that “from now on, you’re the only man in the world my door is closed to.”⁷⁷
Ted’s desertion is followed by a typical New York collusive divorce.⁷⁸ Jerry follows up her threat by becoming a promiscuous party girl (which doesn’t seem to interfere much with her career as a businesswomen). Ted struggles as a journalist, finding little happiness and moving to Paris. Tiring of her glamorous flapper lifestyle, Jerry starts an affair with Paul, an old friend who is trapped in a loveless marriage to Dorothy. Jerry and Paul plan to marry after Paul’s divorce. But the need for Hollywood happy endings⁷⁹ overtakes this quite realistic post-divorce scenario. Jerry feels it would be wrong to deprive Dorothy of her

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husband. Overcome by guilt, she breaks it off and travels to Paris to reconcile with Ted.⁸⁰
Despite the happy ending, The Divorcee attacked with gusto a good many of the social concerns of the late-twenties, such as the sexual double standard, casual infidelity, and quickie (and fraudulent) divorce under the adultery-only standard followed in New York. The film frankly describes post-divorce promiscuity on the one hand and post-divorce alienation on the other, as well as the economic success of one partner and the economic troubles of the other. This story is especially pointed because of the gender inversion (the woman has an active social life and economic success; the man is alienated and loses his job). The issue of whether marriage should be a loveless lifelong commitment for mutual support (Paul and Dorothy) or a vehicle for happiness, love and fulfillment (Ted and Jerry) is an important subtext of the film–and it offers support for both views. Needless to say, the film doesn’t deal with every divorce-related problem; it’s convenient that Jerry has no money problems and isn’t tied down with children. The Studio Relations Committee expressed little concern with the film in 1930,⁸¹ but when the issue arose of remaking it in 1940, Breen vetoed the idea.⁸² This differential treatment of The Divorcee clearly indicates the contrasting attitudes toward divorce-oriented themes of the pre- and post-1934 censorship regimes.
Similarly, in Born To Love (1931), Doris finds herself pregnant after a fling with Barry, a handsome soldier on leave in London during the War. Thinking Barry is dead, she agrees to marry the aristocratic Wilfred who gives the baby his name. Unexpectedly, Barry returns from the War. Doris allows Wilfred to think (wrongly) she committed adultery with Barry; he divorces her with catastrophic consequences.

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Wilfred gets exclusive custody of the baby⁸³ and Doris is thrown out on the street. While the plot of Born to Love is creaky and the movie is in no way memorable, the issues it dwells on are genuine. Is marriage for appearances, convenience, support of children, and stability (as Wilfred saw it)? Or is it for love, passion, and fulfillment? When the two visions of marriage conflict, and divorce follows, family law principles that decide property and custody issues according to fault can produce devastatingly unjust results.⁸⁴
Before leaving the subject of pre-1934 films, we mustn’t overlook the delicious Frank Capra comedy Platinum Blonde (1931) in which streetwise reporter Stew Smith finds himself married to the gorgeous and super-rich Ann Schuyler. How do the filmmakers deliver Stew out of this ill-starred marriage and into the arms of the equally gorgeous but far more appropriate Gallagher, his reporter buddy? With a divorce? Well, of course!⁸⁵

IV. DIVORCE UNDER THE CODE

Surprisingly, two very early films of the PCA era dealt candidly with divorce issues – One More River (1934) and The Gay Divorcee (1934); they were the first and virtually the last films to do so for three decades.

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     One More River, a film directed by James Whale and based on a contemporary book by John Galsworthy, proved to be one of the best divorce pictures of all time. In this film, set in England around 1930, Lady Claire Corven leaves her sadistic husband Sir Gerald in Ceylon because of physical abuse. She cannot divorce him because she cannot prove he committed adultery.⁸⁶ She returns to London and lives a celibate existence although she spends a great deal of time with Tony Croom who adores her. Tony is charming but has neither means nor a job. Gerald returns to win Claire back; when she spurns him, he rapes her. Gerald hires a detective who trails Claire and Tony and gathers a good deal of evidence that they spent a lot of time together under suspicious circumstances. Gerald then sues Claire for divorce, naming Tony as co-respondent.
     Gerald and Claire square off in a crackling divorce trial–perhaps the best ever done in the movies. Strangely, Claire will not testify about the spousal abuse that drove her away from Gerald. She also declines to testify that Gerald raped her in London, even after he brings up the incident to show they were “reunited” in marriage. Evidently, Claire is constrained by her own shame as well as fear of bad publicity–very real concerns for prominent people enmeshed in divorce during the fault era. The jury finds Claire and Tony guilty of adultery and grants Gerald a divorce. At the end, it appears Claire and Tony will wed.
     In letters written both before and after the PCA scheme came into effect, Breen approved this film after requiring that the sadism element be greatly downplayed.⁸⁷ But the Catholic Legion of Decency condemned the film because of its explicit and thorough treatment of divorce. Breen apologized to Carl Laemmle about this result, since the raison d’etre of the PCA was to prevent either the Church or government censors from interfering with distribution of films that the PCA had certified.⁸⁸ After One More River, Breen never again made the mistake taking divorce lightly.
       The Gay Divorcee examined and effectively spoofed fault-based divorce. Primarily a vehicle for the heavenly dancing of Fred Astaire and Ginger Rogers, the film involved an inept London solicitor trying to engineer a collusive divorce. Mimi Glossop fakes an adulterous liaison

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so she can shed her boring husband Cyril who won’t agree to divorce.⁸⁹The scheme gets hopelessly snarled, as Mimi mistakes Guy for a professional gigolo. The story does not meet the requirements of Breen’s guideline: Mimi and Cyril’s marriage was not bad enough to justify divorce. It involves collusive divorce, which was itself a forbidden subject.⁹⁰ Moreover, Mimi successfully ditches Cyril and becomes free to marry Guy. Contrary to the “compensating values” rule, nobody is punished for disregarding the sanctity of marriage.⁹¹ The Gay Divorcee was released in October, 1934. According to various memoranda from the SRC to the producers, the censors were troubled by the story line of the film, but they lacked power to impose their will. The production of the film was essentially completed before the PCA came into existence in July, 1934. Evidently, it got in under the wire, although Hays persuaded the producers to change the title from The Gay Divorce (the name of the stage play from which it was derived) to The Gay Divorcee, based on some peculiar notion that divorce couldn’t be gay even if the divorced spouse was.⁹²
After One More River and The Gay Divorcee, the curtain came down on the candid treatment of divorce in the movies. Under PCA censorship, when marriages got into trouble, the problems were usually repaired short of divorce.⁹³ Divorced couples reunited through remarriage

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in the final reel, regardless of the bitterness of their divorce.⁹⁴ Indeed, during the Code era, relatively few films even alluded to the subject of divorce.⁹⁵
The most prominent films in the PCA era that touched on divorce were screwball romantic comedies (some of them true classics) in which wealthy, childless couples encounter some marital troubles and get divorced with nobody feeling too guilty about it. They always get back together at the end,⁹⁶ thus striking a blow for the “sanctity of marriage.” These films wildly misrepresent the reality of divorce. Needless to say, most couples that get divorced have very serious marital troubles, do not remarry, encounter complex emotional and social problems before, during and after their divorce, are anything but wealthy, suffer economic troubles after divorce and have difficulty paying for their lawyers. They find the rules and institutions of family law perverse and frustrating. They have children who often get badly bruised before things sort themselves out.
The best and funniest example of the sort of divorce/remarriage story tolerated by the censors is The Awful Truth (1937). Lucy and Jerry Warriner decide to get divorced after each justifiably suspects the other of infidelity. We actually see a bit of the divorce proceedings which include a wonderful spoof on custody disputes–the judge has to decide who gets custody of their dog, Mr. Smith.⁹⁷ Lucy and Jerry conduct some rather

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fitful romances during the 90-day waiting period before their divorce becomes final; each does a fine job of sabotaging the other’s affairs. In the end, of course, they get back together just as midnight strikes on the 90th day.⁹⁸
When a story absolutely required that a marriage be terminated for good, screenwriters sometimes turned to annulments rather than divorce. In the beloved classic It Happened One Night (1934), an annulment dispenses with a former spouse. In another great romantic comedy, My Favorite Wife (1940), Ellen Arden is shipwrecked and disappears for seven years. Her husband Nick finally has her declared dead and marries Bianca. On that very day, Ellen returns and starts her campaign to get Nick back. She succeeds, of course, and Nick and Bianca’s marriage is annulled.⁹⁹
Another alternative is to kill unwanted spouses or get them to commit suicide.¹⁰⁰ The censors had no problem with murdering a spouse, provided that compensating values were observed and the killers were suitably punished.¹⁰¹ We find spousal murder in such classic tales as Double Indemnity (1944), The Paradine Case (1947), Dangerous (1935) and The Postman Always Rings Twice (1946). Bad marriages are terminated by death more often than by divorce.¹⁰² In a few cases, where

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the storyline required it, characters were divorced in the past and do not remarry, but as little as possible is said about their divorces.¹⁰³
The Women (1939) pushed the Code’s constraints to the limit. In this wonderfully bitchy romantic comedy, Mary and Stephen get back together in the end, thus protecting the sanctity of marriage and apparently appeasing the censors. However, many divorce issues are treated candidly. A child has difficulties with her new stepmother, adultery abounds, and there are several unreconciled divorces. The Women has long scenes on a ranch in Reno where women from New York (who don’t want to deal with fault-based divorce) travel to live for six weeks and get their divorces by consent. Mostly, life in Reno seems a pleasant vacation in which women get over their marriage and sometimes hook up with new partners.¹⁰⁴
Breen’s guidelines allowed for divorce in extreme cases.¹⁰⁵ In a few films, couples with truly dysfunctional marriages were allowed to get divorced; in line with the theory of compensating values, the guilty party was condemned to loneliness and disgrace. Thus, in Dodsworth (1936), Sam and Fran go to Europe after Sam sells his business. Sam is the typical American abroad, full of boyish enthusiasm, and endlessly patient and protective of Fran. Fran, portrayed as a snobbish and superficial twit, is obsessed with growing old and suffers a mid-life crisis. After a couple of affairs with dashing Europeans, Fran demands a divorce and Sam agrees. For such perfidious behavior, of course, Fran is condemned to a life of disgrace and loneliness, while Sam finds the woman of his dreams. The film was adapted from a novel by Sinclair

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Lewis and a successful stage play; the story just wouldn’t work without the divorce.¹⁰⁶ In a modest number of other films, Breen’s guidelines allowed couples to get a divorce, usually because one spouse was some sort of crook or shrewish bitch¹⁰⁷ or because of adultery.¹⁰⁸Normally, the guilty spouse suffered severe retribution.

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As the Code restraints finally loosened in the 1960s,¹⁰⁹ more candid treatment of divorce themes crept back on the screen. In 1967, Bud Yorkin and Norman Lear’s path breaking comedy Divorce American Style probed numerous themes relating to marriage breakdown and divorce.¹¹⁰The marriage of Richard and Barbara Harmon has disinte-grated badly; they simply can’t stand each other and bicker constantly. He pays no attention to her and is preoccupied with material things. She resents her subordinate role. Ultimately Richard leaves with disastrous consequences. He winds up with $87 per week and none of the community property. Barbara stays in the house and maintains her comfortable life style without working. Richard winds up in a small apartment and drives a VW bug.¹¹¹ The movie has an excellent treatment of the sad plight of the non-custodial father grappling with his visitations. It also deals candidly with problems of post-marriage relationships and dating.
Another divorced couple, the Downs, who are in a similar situation, become entangled with the Harmons. Nelson Downs is frantically trying to marry off his ex-wife (hopefully to Richard) to get out from under his alimony. All ends happily, of course, as Richard and Barbara get back together seconds before their divorce becomes final. This traditional happy ending belied the comic reality of the rest of the film which effectively critiqued divorce lawyers and family law and dealt honestly with the problems of marital breakdown and post-separation lifestyles.¹¹²

V. DIVORCE RETURNS TO THE SCREEN

When Valenti abandoned the Code in 1968, film makers were free for the first time since the silent era to deal with divorce in any way they chose. In the late 1960s and 1970s, divorce themes began appearing

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in American films, but it took ten years before the subject was treated seriously and in depth.¹¹³ While American movies mostly steered clear of the subject, the Swedish film Scenes from a Marriage (1973) provided a probing look at divorce. This film, adapted by Ingmar Bergman from a six-hour television series, unsparingly examined the failed marriage of Marianne and Johan.¹¹⁴ Marianne is a family lawyer, Johan an apparently successful academic scientist. Everyone thinks they are the ideal married couple until Johan announces his departure in a devastating and unforgettable scene. He has fallen in love with Paula, a much younger woman, and he is determined to cast aside all the boring routines and constraints of his passion-less marriage.
Marianne and Johan meet again and again over the years, sometimes deciding to go to bed together, sometimes fighting bitterly. These scenes chronicle Marianne’s depression and recovery and Johan’s decline. Ultimately, they wind up as good friends. The couple has two daughters, whom Johan never sees, but the children are marginal; they never appear on camera. A few other characters appear, bringing into focus their own disastrous marriages, but Bergman concentrates heavily on Johan and Marianne. They are on the screen, mostly talking, for virtually the entire three-hour film. As a window into the psychology of marital breakdown and divorce, and the problems that follow in the wake of divorce, Scenes from a Marriage sets a standard yet to be met by any other film. It stands alone.
Some American post-Code films of the 1970s dealt with divorce-related subjects. While these films were more sexually explicit than their Hays Code predecessors, they mostly adhered to the remarriage-in-the-end convention.¹¹⁵ In Network (1976), Max Schumacher leaves his wife Caroline for the much younger and more glamorous Diana Christensen; Caroline falls into a deep depression. However, Schumacher sees the light and returns to Caroline in the end. Similarly, in Blume in Love (1973), family lawyer Stephen Blume has an affair and is kicked out by his wife Nina who divorces him. The rest of the

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movie concerns Blume’s efforts to get rid of Nina’s new boyfriend and get her back.¹¹⁶ A few post-Code films actually involved divorces in which people got and stayed divorced. For example, a film geek in Woody Allen’s Play It Again, Sam (1972) struggles with meeting women after his wife ditches him (although she tells him not to take it personally).¹¹⁷
In the late 1970s, filmmakers suddenly discovered the potential for serious stories centering on divorce. In addition to the notable Kramer vs. Kramer, numerous other memorable films premised their stories on marital breakups. In An Unmarried Woman (1978), the apparently happy marriage of Erica and Martin disintegrates when Martin announces his affair. After some false starts, Erica hooks up with Saul, an abstract artist. In a refreshing departure from the divorce/remarri-age convention often demanded by the Code or by the need for a happy ending, Erica refuses to take Martin back. Erica and Martin’s 15-year old daughter Patti struggles with her relationship to her father and to Saul. Erica remains in her gorgeous New York apartment despite holding a low-paying art gallery job; Martin seems to have plenty of money and happily uses it to support everyone in the style to which they’ve become accustomed. Nevertheless, Erica’s struggle to find herself after the divorce is convincingly executed and the picture is fondly remembered.
Also noteworthy is Woody Allen’s masterful comedy Manhattan (1978), in which Isaac Davis is dumped by Jill who has become a lesbian and writes a best-selling book about their relationship. Isaac is a mess; he quits his job without knowing what to do next. He’s 42 and having an affair with Tracy who is 17 but far more practical and grounded than he is.¹¹⁸

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These late 1970s and early 1980s films about divorce¹¹⁹ usually involve people who remain as affluent after their divorces as they were before.¹²⁰ However, these films do depict the hurt of the betrayed spouse and the children as well as the post-divorce life changes and new relationships that are the inevitable aftermath of divorce. At least some of the films take their cue from the no-fault divorce laws which were then sweeping the country; they treat both spouses sympathetically, not blaming the spouse whose affair or departure precipitated the end of a loveless marriage.¹²¹

VI. A CLASSIC DIVORCE MOVIE

When we’ve seen a good realistic film, we understand other people and our world a little better than we did before.¹²² A classic realistic picture about the process of marital disintegration and divorce should, like any other picture, be based on a strong story and feature empa-thetic characters. It should treat both spouses with understanding and insight; neither spouse is portrayed as perfect or as a demon. In addition, the film should engage seriously:

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>   The reasons for the fundamental breakdown of the marital relationship, including treatment of gender issues.
>   The economic aspects of splitting one household into two.
>   The effect of the divorce on children.
>   Single parenthood and non-custodial parenthood.
>   Social and relationship problems encountered by newly-divorced spouses.
>   Perverse and outdated family law doctrines.
>   The legal process of divorce.
>   The problems of lawyer-client relationships in family law.

Kramer vs. Kramer–the Book and the Film

While several films of the post-Code era movingly described the emotional upheavals of divorce, particularly the post-divorce relation-ship problems of the spouses, only Kramer vs. Kramer tackled each of these issues. The film was a true breakthrough and deserves to be labeled a classic. Kramer lit the way for many of the films and television shows of the last twenty years that grapple forthrightly with the human drama of divorce as well as with the legal institutions and processes of family law.
Kramer, written and directed by Robert Benton, was based on a low-key but deeply felt novel by Avery Corman.¹²³ It has superb photography, music¹²⁴ and acting, compelling characters, meticulous attention to

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detail, and an engaging story line. It deservedly won the Motion Picture Academy’s Best Picture Award in 1979.¹²⁵
     Ted Kramer (Dustin Hoffman) works for an advertising agency and is deeply preoccupied with career He pays little attention to his wife Joanna (Meryl Streep) who stays at home raising their six-year old, Billy (Justin Henry).¹²⁶ Joanna wants to leave the home and work but Ted won’t hear of it. After kissing the sleeping Billy goodbye, Joanna prepares to walk out. Glowing with pride over a big promotion at work, Ted returns before she makes her escape and tries to stop her. Joanna wrenches loose and flees terrified into the night.
     Ted must learn to become a single parent and after some humorous disasters in the kitchen, he gets pretty good at it. Indeed, Ted and Billy form a close and loving bond. Ted’s priorities no longer are centered on the workplace; instead work becomes the means to support his little family. Ted forms a close and supportive friendship with Margaret (Jane Alexander), also a single parent and former friend of Joanna’s. One day at the playground, Billy falls from the bars while holding a sharp toy and cuts himself badly; Ted has to rush him to the hospital.
     A year and a half after her abrupt departure, Joanna surfaces and she wants Billy back. Ted and his lawyer decide to fight to keep custody of Billy. Meanwhile, the problems of single-parenthood conflict with the needs of Ted’s employer; after a series of incidents in which he misses important meetings, Ted is fired. In utter desperation, the day before Christmas, he lands a new (and much less desirable) job.
     The highly adversarial custody hearing is vicious. Joanna wins; Judge Atkins opts for motherhood, pure and simple. In a heartrending scene, Ted prepares Billy for the switch in custody but, at the very end, Joanna decides not to take Billy home. She says Billy is already home–with Ted. Exactly why Joanna has this epiphany after making

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such a huge emotional and financial investment in the litigation remains unclear.¹²⁷

Kramer vs. Kramer and the Elements of a Classic Divorce Film

     The reasons for the fundamental breakdown of the marital relationship, including treatment of gender issues. Divorce typically occurs after a lengthy process of marital disintegration in which one or both part-ners become progressively more estranged from their marriage. Unlike the couples who impulsively split up in the romantic comedies of the 1930s, the decision to get divorced is seldom impulsive. Before one or both parties decide to uproot their lives and start anew, there must be some pretty good reasons. In order to present a full picture of divorce, a film must explain why the breakdown occurred, showing empathy toward both spouses. In many cases, conflicting conceptions of appropri-ate gender roles are involved in the breakdown process and these must be addressed as well.
     On this score, no film comes close to matching Scenes from a Marriage (1973). In Bergman’s masterpiece, Johan drops his bomb and a tranquil marriage shatters. His reasons are clear, brutal and all too common: he’s having a mid-life crisis, he’s in love with a student, he can’t any longer tolerate the constraints of middle-class marriage and parenthood.
     Kramer vs. Kramer deals adequately with this issue, but its true focus lies elsewhere. The film sketches the reasons for the breakup concisely but sufficiently.¹²⁸ Joanna feels suffocated in her marriage and in the household. Ted takes her for granted and is totally preoccupied with career advancement. He doesn’t even know Billy’s grade in school. Joanna was in the workplace when they got married; she wants to return but Ted will not even discuss the idea. His refusal seems to be rooted in the conception that a woman’s place is in the home and a man’s place is to earn a living. Joanna’s frustration finally boils over

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and she can think of only one way to save herself–a life apart from her family.¹²⁹
     In many divorce movies, and in real life as well, the breakup occurs because of sexual infidelity. One spouse is having a clandestine affair; the other spouse discovers it and can’t forgive. In other cases, the spouse having an affair can’t tolerate living a double life anymore. Often, people have affairs because of sexual dissatisfaction in the marriage or because the relationship has broken down for other reasons.
     For filmmakers, the extra-marital affair is a handy plot device. It allows them to put sexual content on the screen and it involves such highly marketable plot elements as concealment, passion, betrayal, and jealousy. Kramer deserves credit for not taking this easy road but instead relying on a less cinematic story-line. Ted and Joanna break up because of Ted’s careerism, inattention to Joanna, and his gender hangups, combined with Joanna’s feelings of confinement in a passionless life defined by household chores and caring for her husband and child. Neither spouse is unfaithful, cruel, abusive, or petty. These reasons for marital disintegration are not unlike those that break up many marriages.
     Appropriately for its time, Kramer taps into themes of female role that were then, and are still, strongly articulated by the women’s movement. It doesn’t duck these gender issues, but whether it dealt with them fairly is less clear. To some critics, Kramer seems misogynistic. They believe Joanna is vilified for selfishly abandoning her child, then selfishly trying to snatch him back. They see the tale as an attempt to assert paternal hegemony in the family and to take cheap shots at feminism.¹³⁰ In their view, the gender inversions inherent in

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this story are perverse and unfair. No doubt, fathers who abandon their children vastly outnumber mothers who do so. The number of struggling single moms is far greater than the number of struggling single dads. A film glorifying the rare abandoned father may seem a gross distortion of reality.¹³¹ Similarly, they say, Kramer conveys a false impression of the family law system which more often works in favor of men and against women.¹³²
I don’t see Kramer that way. For one thing, Joanna’s character is treated respectfully and sympathetically; her motivations are clear and understandable (except, perhaps, for the denouement). She handles herself well in court. She is never demonized. I don’t believe audiences view the film as anything more than a story about one man, who was a lousy husband and father and who learned to be a good and loving father, at considerable cost to his personal and business life. Every story has to have conflict and has to have an antagonist; just because a particular film about families has a male protagonist and female antagonist doesn’t make it anti-female, any more than a film like An Unmarried Woman is anti-male.¹³³

The economic aspects of splitting one household into two. Most early films about divorce glossed over the economic consequences of marital breakups. This was true of the romantic comedies of the 1930s and many of the more candid pre-Code pictures, as well as most of the post-Code divorce pictures of the 1970s and 1980s. Typically, the couple is so wealthy that there is plenty of money for both partners to continue their affluent lifestyles.

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Kramer wins high marks for a realistic treatment of the economic aspects of divorce. Ted and Joanna had enough money before the divorce (although their beautiful New York apartment might have been hard to swing on Ted’s salary of about $33,000 in 1977 dollars). Joanna’s work in the home produced non-cash income that allowed Ted to pursue his career single-mindedly without concern for caring for his son or the household. Once Ted is on his own, however, economic issues become more pressing, even though Ted’s salary far exceeded the national average.¹³⁴ Conflicts between Ted’s job and parental role result in serious problems at work and ultimately get him fired. This is a catastrophe with the custody hearing looming. Using some high-pressure tactics, he lands another job which entails a pay-cut and for which he’s overqualified.¹³⁵ Meanwhile, Joanna has advanced well beyond her previous career level; she’s a sportswear designer and is earning more money than Ted. Since she has no child to support, her standard of living is undoubtedly much higher than Ted’s.
In fact, Ted’s economic plight is typical of many, perhaps most, divorced single parents, the vast majority of whom are women. The custodial parent finds it difficult to get a job if she’s been out of the labor market. She may well confront gender discrimination in finding a decent job. Certainly her child care responsibilities make her a less desirable employee. In fact, only low-wage jobs may be available. Many studies have documented the drastic downward mobility of women after divorce; it is often accompanied by upward mobility for men.¹³⁶ In theory, spousal and child support burdens should be equally shared by the partners. The reality is that spousal support, if available at all, is usually awarded only for a brief period. While child support is now routinely awarded, the rates of delinquency in payment of both spousal and child support are extremely high. Public authorities tend to be slow and ineffective in collecting delinquent support. Thus Kramer gets credit for its dead-on treatment of the economic aspects of divorce, especially those confronted by the custodial spouse.

The effect of divorce on children. Most divorcing couples have children and the children are nearly always affected negatively by the

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disintegration of their parents’ marriage and ultimate divorce.¹³⁷Typically, children become anxious when their parents quarrel, feel abandoned by the departure of the non-custodial parent, sense a need to take sides between the parents, find the process of visitation by the non-custodial parent to be painful, and have difficulty grappling with their parents’ post-divorce relationships. Most movies about divorce ignore children entirely, although several of the movies of the late 1970's and early 1980's¹³⁸ did take the problems of children seriously. Kramer confronts the impact of the divorce on little Billy in a candid and wholly convincing manner. He desperately misses his mother. The impact of her rejection (and her strangely cold letter of explanation) are terrible. He finds it hard to adjust to having his father care for him. Ultimately, Billy bonds closely with his father. Billy is mystified by the visitation process when Joanna surfaces and wants to see him. Ultimately, he is devastated by the imminent change in custody. I think almost anyone who sees this film empathizes with Billy and understands clearly the devastating effect of the breakup of his parents’ marriage and of the custody dispute.

Single parenthood and non-custodial parenthood. Children are mostly ignored in films about divorce. As a result, the emotional problems of the parent-child relationship receive little attention. Yet in real life, these relationships are often deeply problematic. A custodial parent tends to form an intense emotional bond with the child; indeed, the child may become the parent’s best friend and confidante. The non-custodial parent may miss the child intensely, may suffer serious difficulties with visitation if the custodial spouse is non-cooperative, and may find it difficult to maintain an appropriate and loving relationship with the child.
All this appears in Kramer. Ted and Billy bond intensely and Ted’s life revolves around his work and spending time with Billy.¹³⁹ There is little

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time to form new relationships. Losing custody of Billy might seem to be beneficial to Ted professionally and socially; certainly it would simplify his life and improve his financial situation.¹⁴⁰ Yet the thought that he might lose custody is unbearable, even though he would, no doubt, be granted generous visitation rights. Ted doesn’t object to anything about Joanna and the way she would raise Billy; it is not as if he is jealous of another man in her life. He invests large emotional and financial resources in preserving his role as primary caretaker, knowing it will be an uphill struggle. This suggests an emotional over-dependence on the custodial relationship.
Joanna, on the other hand, obviously suffers intensely from her status as a non-custodial parent. We are uncertain as to why she mounts the custody fight, as opposed to negotiating an acceptable visitation schedule which Ted would undoubtedly have agreed to. Perhaps Joanna is motivated by guilt for her irresponsible abandonment of Billy, perhaps she is lonely, perhaps she has rediscovered a belief that her role as a woman is to be primary caretaker of the child, or perhaps she genuinely believes that Billy would be better off living with her. Whatever the reason, it is apparent that Joanna is willing to bet big emotional and financial chips in what she knows will be a difficult and traumatic struggle to obtain custody. Again, it is not as though Joanna objects to anything in Ted’s child care; in fact she admires the job he has done with Billy. There is no woman in Ted’s life, for example, of whom Joanna is jealous. She simply cannot accept the role of non-custodial parent. While Kramer involves a gender role reversal (normally it is the man who is the non-custodial parent), it accurately portrays the extreme dissatisfaction that many non-custodial parents feel toward their role as secondary caretaker.

Social and relationship problems encountered by newly-divorced spouses. Divorced people often have social difficulties in the post-divorce period. Accustomed to their stable marital relationship, dating appears difficult and daunting. They may well find themselves lonely and alienated. Married couples who were former friends may shun newly single people (or may choose the other spouse as the continued friend). Potential

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partners tend to avoid recently separated or divorced people for good reason–they are often emotionally unstable and they some-times reconcile with their former spouses. Single parents find that their responsibility for young children vastly complicates the dating process. Other recently divorced people go to the opposite extreme; they become oversocialized and experience promiscuous but emotionally empty life styles. They may unwisely get married on the rebound. The late 1970’s and early 1980’s movies about divorce are strongest in detailing the post-divorce social and emotional ups and downs that divorced people often experience.¹⁴¹
Kramer is less strong in this department. Although Joanna testifies that she has a boyfriend, we learn little about her life. We do see Ted dating;¹⁴² in one humorous scene, an overnight guest is heading for the bathroom stark naked when she runs into Billy. Billy handles it much better than the guest. We also see Ted’s emotional dependence on his friendship with Margaret who becomes his confidante and partisan in the custody battle; she seems to be his only friend. He just doesn’t have much of a social life; he doesn’t have the time, energy, or money to develop one. In this respect, Ted may be typical of most custodial parents who are balancing childcare and a job; there’s little opportunity to socialize.

Perverse and outdated family law doctrines. Classic movies about law, like classic novels or stage plays about law, should deal forthrightly with the legal rules and procedures that apply to the situation. In particular, they should grapple with outdated or perverse legal doctrines, institutions, or procedures. Think, for example, of novels like Bleak House, An American Tragedy, Billy Budd, or Les Miserables, or films like Inherit the Wind, I Want to Live, Paths of Glory, or To Kill a Mockingbird – each an all-out assault on some venerable law or legal institution.
Relatively few movies relating to divorce focus on the perverse and antiquated doctrines of family law that divorcing couples once endured. In the last three decades or so, an entirely new vision of marriage

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termination has swept away most of the old family law doctrine. Today the emphasis is on removing consideration of fault, mediating instead of litigating, and treating the ownership of marital property as a partnership. California sparked the no-fault revolution with its 1969 statute allowing divorce upon the petition of either spouse on a simple showing of irreconcilable differences. Fault was no longer considered in determining spousal or child support. Most of the states swiftly followed suit.¹⁴³ In addition, joint physical and legal custody of children has become the norm in many states instead of the earlier system which gave all custodial rights to one parent and considered fault in determin-ing child custody.
     Prior to these reforms, however, divorce law was heavily oriented towards determining which spouse was at fault.¹⁴⁴ Depending on the state, the petitioning spouse had to prove abandonment, adultery, or physical or mental cruelty in order to be awarded a divorce. Some states, like New York, permitted divorce only in cases of adultery. Of course, in the vast majority of cases arising under fault provisions, divorce actions were collusive default affairs based on perjured or rigged testimony. Judges knew this but waved the cases through.¹⁴⁵ Large numbers of spouses went to Nevada (or some other divorce haven) where one could get divorced without proof of fault after six weeks of residence.¹⁴⁶
     Fault was important for reasons beyond establishing entitlement to divorce. Fault played an important role in determining the division of marital property and the award of alimony.¹⁴⁷ If the man was found to be at fault, the woman would get most of the marital property and might get considerable alimony; if the woman was at fault, she was likely to come away with little or nothing. Considerations of fault were often taken into account in child custody determinations as well; parents guilty of adultery were judged unfit custodians.
     A few films zeroed in on the perversities of contemporary family law. In Born to Love (1931), the wife was found (erroneously) to have committed adultery; she was denied custody of her child and thrown out

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on the street with nothing.¹⁴⁸ At the end of the Hays era, in Divorce American Style (1967), the husband got none of the community property and had to pay such high alimony he was reduced to poverty.¹⁴⁹ Generally, however, films about divorce (whether before, during, or after the Hays era) ignored family law entirely or, if they referred to it at all, took it for granted. The story simply applied existing family law doctrine or got around it without seeming to mock or criticize it.¹⁵⁰ Maintaining a cautious silence on a controversial political issue (such as the perverse and antiquated fault doctrine in family law) was wholly typical of the PCA’s approach to self-censorship; that body studiously avoided conflict with the Catholic hierarchy or with anyone else who might make trouble.¹⁵¹
In contrast, Kramer foregrounds family law doctrine by leveling a withering attack on the tender years presumption. This rule imposed an evidentiary presumption that maternal custody was in the best interest of young children. In some states, the father could rebut the presump-tion only by showing the mother was unfit (which often meant at fault); in others, the father could rebut the presumption by showing that paternal custody would better serve the child’s developmental needs.¹⁵²
The tender years presumption was universally applied in the United States from the middle of the nineteenth century through the 1960s.¹⁵³

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By the late 1970s, the presumption was in decline but still much alive in a number of states.¹⁵⁴ It was occasionally still employed in New York at the time Kramer was set, although seemingly contrary to a New York statute.¹⁵⁵ Today it has virtually disappeared, usually in favor of a vague “best interests of the child” standard.¹⁵⁶ In general, whatever the legal standard, mothers won a very high percentage of contested custody cases during the era in which Kramer took place.¹⁵⁷

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The tender years presumption was and remains the subject of considerable scholarly dispute.¹⁵⁸ Feminist theoreticians who pursue the equal treatment approach tend to oppose the presumption, since they believe that the tender years doctrine is based on a stereotype that women are instinctive child rearers inherently unsuited for worldly pursuits. These writers tend to favor a gender-neutral primary caretaker standard rather than an unstructured best interests of the child standard.¹⁵⁹ However, feminist writers that pursue the difference approach tend to favor the presumption or some variation of it. Under the difference approach, laws that recognize actual differences between men and women are appropriate. In the view of a number of writers, mothers rather than fathers are likely to have a better ability to nurture small children.¹⁶⁰ Proponents of the tender years presumption also believe that it lessens opportunistic tactical behavior in divorce by fathers who don’t really care about custody but who threaten to contest it unless mothers decrease their financial demands.¹⁶¹
The tender years doctrine was applied incorrectly in Kramer, because Ted effectively rebutted the presumption. In no event should the presumption be applicable to a modification of custody, as opposed to an initial determination of custody at the time of divorce.¹⁶² The most important point is that Ted, not Joanna, had been Billy’s primary caretaker for a year and a half.¹⁶³ After all, Joanna had abandoned Billy. Ted had formed a close emotional bond with Billy and had been an excellent and caring parent. Changing custody could only be terribly

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disruptive to Billy. At a minimum, Billy would suffer short-term trauma; he might well suffer long-term damage. The court was impressed with none of this. As the judge saw it, assuming that a mother of a young child is not somehow unfit, she gets custody. Thus Kramer deserves credit for identifying a dubious family law doctrine, as well as judicial behavior that constitutes an abuse of discretion, and subjecting both to criticism. In this respect, Kramer blazed a path for future movies, such as Losing Isaiah,¹⁶⁴ that attack antiquated or unfair family law doctrines or family court judges that abuse their discretion.

The family law process. In order to get divorced in the fault era, and often in the no-fault era as well, a couple had to survive the family law process. That process often constitutes a horrible ordeal for the human beings enmeshed in it. In the fault era, family law doctrine required the disclosure of intimate details of one’s private life. Each litigant tried to discredit the personality of his or her opponent; a judge had to decide who cheated on who, who was more cruel, who walked out on whom. The trial process became acrimonious and the testimony often vicious, intrusive, petty, and humiliating.¹⁶⁵
Most fault-era divorces, of course, were collusive default judgments; the judges waved the litigants through after a phony (but still embarrassing) presentation of fictitious fault. In the no-fault era, details of personal conduct are blessedly off-limits except when relevant in child custody disputes which can get very nasty. Moreover, the financial aspects of divorce often require lengthy and complex trials. For example, it may be necessary to value the goodwill of a law firm or a medical practice or to place a valuation on unvested pension benefits or stock options. While the vast majority of such disputes are negotiated or mediated to a conclusion, the fact remains that numerous divorce cases are still litigated. When one spouse or both wants to fight, the process can be excruciatingly long and costly.

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     Kramer gets credit for showing what a miserable experience adversarial family law processes can be. The Kramer trial is marked by vicious mudslinging. Joanna’s attorney smears Ted with the playground incident, implying he was a careless father,¹⁶⁶ and mercilessly explores Ted’s downward job mobility. Ted’s attorney smears Joanna by asking whether she has been a failure at her marriage and at everything she has ever tried. He insists on asking her how many lovers she has had and whether she currently has a boyfriend. He uses a patronizing tone and at times yells at her.
     In its understandable zeal to expose the destructiveness of family court litigation, Kramer goes over the top. The question about whether Joanna has been a failure at everything she has tried is improper; it should have been objected to as argumentative or unduly vague. Whether Joanna has a boyfriend, or the number of her lovers, has nothing to do with the issues at the trial, absent a showing that she is indiscreet. Whether Ted has downward economic mobility counts for little, given that he lost his previous job because he put parenting ahead of job duties. The attorneys cut off witnesses, demanding yes or no answers. In a trial to the judge, surely a witness would be allowed to give a complete answer to a question. Similarly, lawyers seem unable to use redirect examination to correct distortions arising in cross examination.
     In the real world, Judge Atkins would never have decided the custody issue cold. He would consider reports of a social worker or other professional on Billy’s family situation. He might have gently interviewed Billy, asking him questions about his daily life with his dad. When Ted’s lawyer Shaunessy tells Ted that in the event of an appeal he would have to put Billy on the stand, this is nonsense; an appeal is based on the written record, not on new evidence. Even if a new trial were ordered, seven-year old Billy surely would not be made to take the stand. The attorneys never discuss mediating the dispute rather than fighting it out in court.¹⁶⁷ They also fail to consider joint custody solutions¹⁶⁸ or other ways of avoiding zero-sum results. Thus the actual courtroom battle in Kramer wasn’t all that realistic, but the film still

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gets good marks for showing how unpleasant and how costly family law litigation can become.¹⁶⁹ Since the film’s goal is to criticize the process of adversarial custody litigation, such excess is permissible dramatic license and it turns out to be entertaining.

The problems of lawyer-client relationships in family law. To get divorced or dispute support, property, or custody, parties who can afford it must hire lawyers. Family lawyers are very expensive.¹⁷⁰ Sometimes the lawyers exacerbate the problems, turning a relatively friendly divorce into a take-no-prisoners brawl.¹⁷¹ Sometimes the lawyers wind up with most of the marital property.¹⁷² Kramer gets credit for not overlooking the cost of legal services. The custody fight costs Ted $15,000¹⁷³ (not counting an appeal). In current dollars, the cost would easily be three or four times that amount and probably much more.
The vicious trial in Kramer reveals how family lawyers often must play harsh, destructive roles in the courtroom (regardless of whether they are nasty people in their private lives). As Ted’s lawyer Shaunessy makes

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clear, the only hope is to destroy Joanna on the stand. Joanna’s lawyer played the same game.¹⁷⁴

VII. CONCLUSION

Marital breakdown and divorce are, unfortunately, critical and formative events in the lives of many adults and many children. Marital disintegration and divorce are typically accompanied by high emotion, feelings of hurt and betrayal, clashes of values, conflicts relating to sexual conduct, fights over money and property, and abrupt changes in lifestyle. All this is standard fare for movie stories today, but it seems quite amazing now that the subject was nearly erased from the screen for over thirty years. During the Hays era, as little as possible was said about divorce and the little that was said was hopelessly inaccurate. Censorship (whether from the government or from the industry) blotted out and distorted the presentation in popular culture of a widespread and legal form of human behavior.
After the industry finally jettisoned the Hays Code, serious treatment of divorce finally returned to the screen. A batch of memora-ble and compassionate films told the stories of people who endure marital disintegration, divorce, and the transition to singlehood. Of these films, Kramer vs. Kramer took a good narrative to another level, dealing realistically with divorce and child custody. In its treatment of the consequences of divorce and custody disputes to adults and children, and its focus on legal institutions, process and doctrine, Kramer v. Kramer broke new ground. The film deserves an honored place in the pantheon of movies about the family as well as movies about law and the legal system.

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ENDNOTES

* Professor of Law, UCLA Law School. The author thanks the following for their help in preparing this article: Dyanne Asimow, Grace Blumberg, Barbara Brudno, Rafi Cohen-Almagor, Phil Doran, Alan H. Friedenthal, Russell Griffith, Laura Kalman, Tom Griffith, Christine Littleton, Francis M. Nevins, David Ray Papke and Sandra Polin. The author also is grateful to the Margaret Herrick Library of the Academy of Motion Picture Arts and Sciences for making available its files. The memoranda and correspondence discussed herein are located in the Herrick Library. A shorter version of this article appears as a chapter in Teree Foster and Rennard Stricklin (eds.), SCREENING JUSTICE (forthcoming 2000).

1. For discussion of the study of film as social history, see Douglas Kellner, MEDIA CULTURE 5 (1995) (study of popular culture illuminates social environment and provides insight into what is going on in contemporary society); Chandra Mukerji & Michael Schudson, Introduction, in RETHINKING POPULAR CULTURE 26 (1991) (popular culture should be viewed as a society thinking about itself); Molly Haskell, FROM REVERENCE TO RAPE: THE TREATMENT OF WOMEN IN THE MOVIES xii (1973) (movies as looking glass into the past); Lawrence Friedman, Law, Lawyers, and Popular Culture, 98 YALE L.J. 1579 (1989) (study of films necessary to study social history of law); Louise Everett Graham & Geraldine Maschio, A False Public Sentiment: Narrative and Visual Images of Women Lawyers in Film, 84 KY. L. REV. 1027, 1028-34 (1995-96) (film narrative and imagery is window into cultural notions of women’s status).

2. See Michael Asimow, Bad Lawyers in the Movies, 24 NOVA L. REV. 531 (2000) (films about bad lawyers influence public attitude toward lawyers).

3. For other treatments of divorce in film, see Ira Lurvey & Selise E. Eiseman, Divorce Goes to the Movies, 30 U.S.F.L. REV. 1209 (1996); David Ray Papke, Peace Between the Sexes: Law and Gender in Kramer vs. Kramer, 30 U.S.F.L. REV. 1199 (1996).

4. See Roderick Phillips, UNTYING THE KNOT 186-190, 209-13, 225 (1991); U. S. Dep’t of Commerce, MONTHLY VITAL STATISTICS REP. (March 22, 1995).

5. Phillips, supra note 4, ch. 7-9; Glenda Riley, DIVORCE: AN AMERICAN TRADITION (1991).

6. Phillips, supra note 4, ch. 9; Riley, supra note 5, at 144-46.

7. Undoubtedly, the widespread adoption of no-fault divorce in the 1960s and 1970s made divorce easier and cheaper and thus contributed to the increase in the divorce rate. However, that is not the whole story; no-fault was adopted in part because the legal system couldn’t cope with the flood of divorces under the then-prevailing fault system. The big rise in the divorce rate preceded the adoption of no-fault. Phillips, supra note 4, at 243; J. Herbie DiFonzo, BENEATH THE FAULT LINE: THE POPULAR AND LEGAL CULTURE OF DIVORCE IN TWENTIETH-CENTURY AMERICA (1997).

8. See Phillips, supra note 4, ch. 8, 9; DiFonzo, supra note 7, ch. 1

9. Phillips, supra note 4, ch. 5.

10. DiFonzo, supra note 7, ch 1.

11. Weitzman claims that following divorce, wives’ standards of living decreased by 73% and husbands’ increased by 43%. Leonore J. Weitzman, THE DIVORCE REVOLUTION 337-56 (1985).

12. Haskell, supra note 1, at 153-88.

13. See generally Richard S. Randall, CENSORSHIP OF THE MOVIES (1968). Film censorship can be viewed as one important part of a much bigger story – a century-long struggle between producers and consumers of popular culture for control of its content. The struggle continues today with battles over television ratings or Internet content. Many (but by no means all) of the private pressure groups trying to control cultural products are religiously based. See generally Francis G. Couvares, Hollywood, Main St. and the Church: Trying to Censor the Movies before the Production Code, 44 AMER. QUAR. 584 (1992).

14. Robert Sklar, MOVIE-MADE AMERICA 30-32 (New York City), 126-32 (Chicago) (1994); Randall, supra note 13, 11-13.

15. Censorship boards operated in eight states and about 90 cities, frequently affecting film distribution for large regions. Mark A. Vieira, SIN IN SOFT FOCUS: PRE-CODE HOLLYWOOD 8 (1999); Raymond Moley, THE HAYS OFFICE 27-28, 53-56 (1945).

16. Mutual Film Corp. v. Ohio Industrial Commission, 236 U.S. 230 (1915); Block v. City of Chicago, 239 Ill. 251, 87 N.E. 1011 (1909). See Randall, supra note 13, at 18-25; John Wertheimer, Mutual Film Reviewed: The Movies, Censorship, and Free Speech in Progressive America, 37 AM. J. LEG. HIST. 158 (1993) (pointing out that prior to Mutual Film nobody had even considered the possibility that movies might be entitled to freedom of speech). In Mutual Film, the Court considered whether Ohio’s censorship statute violated the state constitution; at that time, the Bill of Rights of the U. S. Constitution did not apply to the states. The Court thought that movies were no different from circuses or other spectacles, conducted purely for profit. In the Court’s view, they had nothing in common with the press.

17. Joseph Burstyn Inc. v. Wilson, 343 U.S. 495 (1952). The Court invalidated New York’s censorship statute which banned exhibition of films that were indecent, immoral, inhuman, sacrilegious, or would tend to corrupt morals or incite to crime. Dictum in a 1948 case clearly foreshadowed that Mutual Film would be overruled. United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948). See Randall, supra note 13, at 25-32. Nevertheless, many state and local censorship boards remained in existence even after Burstyn to enforce obscenity laws. See Freedman v. Maryland, 380 U.S. 51 (1965) (setting forth procedural protections that licensing boards must provide).

18. The National Board of Review of Motion Pictures consisted of a group of lay people who screened all new films looking for “obscenity,” a term they considered self-defining. Sklar, supra note 14, at 31-32.

19. See Moley, supra note 15, at 32-51 for an account of Hays’ personality, the rationale for hiring him as the industry’s leader in 1922, and the relationship of his organization to the film industry.

20. For an account of Hays’ struggles with Protestant and Catholic pressure groups, see Couvares, supra note 13.

21. Vieira, supra note 15, at 8, 14; Sklar, supra note 14, at 133, 154; Randall, supra note 13, at 16; Moley, supra note 15, at 59; Richard Maltby, “To Prevent the Prevalent Type of Books:” Censorship and Adaptation in Hollywood, 1924-1934, 44 AMER. QUAR. 554 (1992). Maltby recounts Hays’ efforts to prevent adaptation of inappropriate books and to sanitize books that were adapted.

22. Couvares, supra note 13, at 594-98.

23. The 1927 Code is reprinted in Vieira, supra note 15, at 214; Gerald Gardner, THE CENSORSHIP PAPERS: MOVIE CENSORSHIP LETTERS FROM THE HAYS OFFICE 1934 TO 1968, 213-14 (1987).

24. Vieira, supra note 15, at 12-13; Sklar, supra note 14, at 174; Moley, supra note 15, at 65-67; Jack Vizzard, SEE NO EVIL: LIFE INSIDE A HOLLYWOOD CENSOR 39 (1970).

25. Leonard J. Leff & Jerold L. Simmons, THE DAME IN THE KIMONO: HOLLYWOOD, CENSORSHIP, AND THE PRODUCTION CODE FROM THE 1920'S TO THE 1960'S 8 (1990).

26. Vieira, supra note 15, at 13-18, and Leff & Simmons, supra note 25, at 9-12, have good accounts of the complex politics, as well as the colorful personalities, involved in the process of drafting and approving the 1930 Code. The Hays Code, and the official statement of reasons supporting it, are reproduced in Vieira, supra note 15, at 214-18; Thomas Doherty, PRE-CODE HOLLYWOOD: SEX, IMMORALITY, AND INSURRECTION IN AMERICAN CINEMA 1930-1934, 347-64 (1999).

27. Leff & Simmons, supra note 25, at 13-54; Moley, supra note 15, at 68-76; Vieira, supra note 15, at 18; Doherty, supra note 26, at 8, 106-07. In 1933, a prominent screenwriter asserted that “the Hays moral code is not even a joke any more; it’s just a memory.” Id.

28. Doherty, supra note 26, at 34-37.

29. Ticket sales fell from the astounding level of 100 million tickets weekly to 40 million before leveling off at 60 million. Id. at 28.

30. Id. 31-34.

31. Couvares, supra note 13, at 599-610, details the long-term involvement of the Catholic church with attempts to control the content of films. Originally, Couvares notes, Hays found the Catholics more congenial than the Protestants because the Catholics opposed censorship legislation and because (unlike the Protestants) they usually spoke with a single voice. However, the relationship became more adversarial in the late 1920s and worsened in the 1930s when the Church decided the Hays Code was not being enforced. Particularly harmful was a tremendous controversy over the film The Callahans and the Murphys (1927) which was viewed as disparaging to the Irish as well as to the Church.

32. Sklar, supra note 14, at 173; Moley, supra note 15, at 80-81; Doherty, supra note 26, at 320-22; Vieira, supra note 15, at 172.

33. Doherty, supra note 26, at 322-23; Sklar, supra note 14, at 134-40.

34. Doherty, supra note 26, at 323-24. In addition, a newly established federal agency, the National Recovery Administration (NRA), threatened to regulate the content of pictures along with all economic aspects of the industry. Id. at 323. See text, supra note 47-49 for further discussion of the NRA.

35. See Vieira, supra note 15, at 191-93 for a vivid description of the events surrounding the formation of the PCA.

36. The only appeal from the Office’s rulings was to the full board of directors of the MPPDA in New York. This group consisted of financial people anxious to avoid offending public tastes. Appeals were rare and seldom successful. Doherty, supra note 26, at 325-27; Vizzard, supra note 24, at 54.

37. Breen’s background and personality are discussed in Vizzard, supra note 24, at 45-56; Moley, supra note 15, at 79-80, 89-90. Breen had worked for Quigley (co-author of the 1930 Hays Code) before Hays hired him and indeed was something of a double agent. Vizzard claims that Breen, while employed by Hays, played an important role in organizing the Legion of Decency whose boycott threats helped bring on the PCA.

38. In addition, the studios agreed to pay liquidated damages of $25,000 if they released a film without a seal. The liquidated damage provision agreement was quietly dropped because of antitrust concerns. Moley, supra note 15, at 83; Vizzard, supra note 24, at 54.

39. Moley, supra note 15, at 92-95.

40. Gardner, supra note 23, at xx. Gardner’s book consists entirely of correspondence and memoranda from the PCA’s files concerning Hollywood’s most beloved films. As Gardner puts it, “when one reads the letters from the Hays Office to men like Louis B. Mayer, Jack L. Warner, and Harry Cohn, one can picture these autocrats thrashing about like hooked marlin, as the censors gutted the most dramatic ingredients from their most prized and profitable pictures.” Id. at xvi. Leff and Simmons’ chapter on Gone with the Wind (1939) is an amusing and enthralling account of the struggles between Breen and David O. Selznick over countless details in that classic film. Leff & Simmons, supra note 25, ch. 5.

41. Odd as it seems to us today, there was relatively little complaint from film critics or the general public about movie censorship. Some speculate that censorship was palatable because people believed that the libertinism and money-grubbing of the 1920s had precipitated the Depression. Doherty, supra note 26, at 47-50; Vizzard, supra note 24, at 38-39.

42. Often, Breen’s letters simply pointed out the idiosyncratic rules
maintained by foreign censorship boards so that scripts could be rewritten before production began.

43. Doherty, supra note 26, at 335-36.

44. See James M. Landis, THE ADMINISTRATIVE PROCESS, ch. 1 (1938).

45. See generally Richard B. Stewart, The Reformation of Administrative Law, 88 HARV. L. REV. 1667, 1676-88 (1975), discussing the failure of the “expertise” model to legitimate broad delegations of legislative power to administrative agencies.

46. 48 Stat. 195.

47. Films of the time often display the NRA’s blue eagle.

48. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (NIRA invalid both as an unlawful delegation of legislative power and because it exceeded Congress’ power under the commerce clause). By this time, NIRA was widely regarded as a cumbersome failure; it probably would have been repealed if the Supreme Court had not invalidated it. See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1254-57 (1986).

49. Self-regulatory regimes have been very common in the communications industry. See Angela J. Campbell, Self-Regulation and the Media, 51 FED. COMM. L. J. 711 (1999) (evaluating self-regulation of radio, television, comic books, and video games as well as movies); Nina C. Leibman, LIVING ROOM LECTURES 105-13 (1995) (self-regulation in television industry). For a discussion of self-regulatory administrative bodies and the role of professionalism in their formation, see generally Jody Freeman, The Private Role in Public Governance 75 N.Y.U. L. REV. 101 (2000).

50. Radio Act of 1927, 44 Stat. 1162 (1927); Thomas G. Krattenmacher, COMMUNICATIONS LAW AND POLICY 3-12 (1994).

51. Obviously, a key element in formation of the PCA was that the industry was oligopolistic; it consisted of a relatively small number of studios, all of which subscribed to the idea. Since the studios also controlled most of the first run theaters, they were able to bring the independents on board as well. In the present environment of weak studios, independently owned theaters, and independent film production, it would be infinitely more difficult to initiate a self-regulatory censorship scheme.

52. Doherty, supra note 26, ch. 5 discusses the competition between studios in the early 1930s to produce ever more lurid pictures.

53. See Vieira, supra note 15, at 219 for a sample of Breen’s interpretive rules. See also text, infra notes 72-73, for treatment of Breen’s interpretive rule about divorce.

54. Indeed, the PCA’s functions were much more bureaucratic and intrusive than those carried out by typical state and local government censorship boards. Government boards normally became involved in the censorship process only by viewing completed films and then granting or refusing to grant permits or demanding cuts. See Randall, supra note 13, at 81-111 for a description of the operations of state and local censorship boards.

55. Breen wrote: “We like to think that the decisions of the Production Code Administration are, in reality, the decisions of a private judicial tribunal, duly instituted and empowered to interpret a set of fundamental laws. These decisions, even as the decisions of public courts, have the force of law for the industry and are carefully considered in adjudicating subsequent cases.” Leff & Simmons, supra note 25, at xiii-xiv.

56. Vizzard, supra note 24, at 10.

57. See supra note 36.

58. See supra note 17. The 1948 Paramount antitrust decision which opened up the industry to independent producers and theater owners also weakened the Code structure. United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948). Paramount created new players who might be willing to produce or exhibit films without the PCA seal. Randall, supra note 13, at 200; Roy Eugene Bates, Note, Private Censorship of Movies, 22 STAN. L. REV. 618, 620 (1970).

59. Vizzard, supra note 24, at 151-58; Randall, supra note 13, at 208-09; Leff & Simmons, supra note 25, ch. 9. Preminger also directed The Man with the Golden Arm (1956) which again was released without the seal and succeeded at the box office.

60. Shurlock’s relaxed attitude triggered a severe schism between the PCA and the Catholic Legion of Decency. Vizzard deals extensively with this conflict. Vizzard, supra note 24, at 190-264.

61. Randall, supra note 13, at 201-04. The 1966 revised code did not contain language about protecting the sanctity of marriage. Possibly, Divorce American Style (1968), discussed in text, supra notes 105-08, is an example of a film that could be made under the 1966 Code revisions but not under earlier versions.

62. Randall, supra note 13, at 205 (39 films produced by major studios were released without the seal of approval during a three-year period in the 1960s). According to Randall, id. at 209, from 1960-64 only about 22% of the total number of films exhibited in New York had the PCA seal of approval; however, the PCA maintained that films with the seal accounted for close to 90% of total gross domestic receipts. Foreign films, independent productions, and nudie films were among the many that were never submitted for code approval during the 1960s. Sometimes unapproved films were released through subsidiaries of the studios so that everyone could maintain the pretense that the studios still complied with the Code. Vizzard, supra note 24, at 342.

63. Vizzard provides a humorous account of the last days of the Code, with particular reference to the treatment of oral sex. Vizzard supra note 24, at 329-48.

64. See Richard M. Mosk, Motion Picture Ratings in the United States, 15 CARDOZO ARTS & ENT. L. J. 135 (1997); Sklar, supra note 14, at 294-97; Doherty, supra note 26, at 344. In fact various rating systems had long been in effect, some supported by the film industry. Randall, supra note 13, at 181-98.

65. The separate bed rule was imposed by the English censors, and the PCA enforced it as an accommodation to its British counterpart. Vizzard, supra note 24, at 114.

66. For discussion of the toilet rule, see Leff & Simmons, supra note 25, at 150-51.

67. The Code provided: “No film shall infer that casual or promiscuous sex relationships are the accepted or common thing. Adultery and illicit sex, sometimes necessary plot material, shall not be explicitly treated, nor shall they be justified or made to seem right and permissible.”

68. See Vieira, supra note 15, at 219 (quoting the Office’s annotations relating to compensating moral values); Gardner, supra note 23, at xviii; Sklar, supra note 14, at 174; Moley, supra note 15, at 101; Doherty, supra note 26, at 11.

69. Vizzard, supra note 24, at 20.

70. For example, the Code provided that “the subject of abortion shall be discouraged, shall never be more than suggested, and when referred to shall be condemned ... a story must not indicate that an abortion has been performed. The word ‘abortion’ shall not be used.” Under the 1956 Code revision, abortion could be referred to if clearly condemned. Leibman, supra note 49, at 98. On the subject of homosexuality in film, see William N. Eskridge, Jr., Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy 1880-1946, 82 IOWA L. REV. 1007, 1078-80 (1997).

71. Doherty, supra note 26, at 6-7; Randall, supra note 13, at 206-13. Daniel Lord, a Catholic priest and one of the authors of the Hays Code, wrote in a 1931 letter complaining about lax enforcement of the Hays . Code: “The stories are now concerned with problems. They discuss morals, divorce, free love, unborn children, relationships outside of marriage, single and double standards, the relationship of sex to religion, marriage and its effects upon the freedom of women. These subjects are fundamentally dangerous.” Quoted in Vieira, supra note 15, at 55 (emphasis added).

72. Moley, supra note 15, at 107. For treatment of divorce on television, see Leibman, supra note 49, at 106 (under 1962 TV code revision, justified divorce was permissible thematic material).

73. Letter from Stephen S. Jackson to Harold Melnikes, April 21, 1948. Similarly, in commenting on The New Divorce, another picture that was never made, Breen wrote that the “entire dialogue, in which discussion of divorce is treated for comedy, is objectionable, on the ground that it weakens respect for the institution of marriage.” Letter from Breen to John Hammell, June 19, 1936. In commenting on Gentleman’s Agreement, Breen wrote: “It is regrettable that the sympathetic lead in your story should be a divorced woman. We have steadfastly made a practice of urging that such characterizations be omitted whenever possible for the general good and welfare of the industry. Our feeling is based upon the fact that, by having your sympathetic lead a divorced woman, your story inevitably carries the flavor of acceptance and a tacit justification of divorce. We have, of course, steadfastly refused to approve stories which contained an outright justification of divorce, and have endeavored to approve divorce in motion pictures only when it was obtained against the wishes and generally over the objection of the sympathetic lead.” Letter from Breen to Darryl Zanuck, March 21, 1947, quoted in Gardner, supra note 23, at 179. Somehow Zanuck prevailed on this point. Kathy Lacey’s prior divorce is discussed freely throughout the film.

74. Sklar, supra note 14, at 92-94; Charles Musser, Divorce, DeMille and the Comedy of Remarriage, in Kristine Brunovska-Karnick and Henry Jenkins, CLASSICAL HOLLYWOOD COMEDY 282-313 (1995). The subject index to the American Film Institute Catalog of Motion Pictures Produced in the United States lists 171 films dealing with divorce from 1911-20 and 182 films dealing with divorce from 1921-30. In many silent films, particularly those made by Cecil DeMille, divorce followed marital breakdown and was treated as an acceptable, even positive course of action. The spouses sometimes but not always got back together in the end. Ernst Lubitsch’s The Marriage Circle (1924) is a good example of a divorce for keeps. A married couple, Josef and Mitzi Stock, despise each other. Mitzi carries on an affair with Franz, her best friend’s husband. Josef gathers the evidence of her fling and divorces her. Franz goes back to his wife and Mitzi takes up with Franz’s business partner. This story would become unthinkable after 1934.

75. See generally Doherty, supra note 26; Vieira, supra note 15. Just a few titles from these refreshingly candid films: Baby Face (1933), Red Headed Woman (1932), Blonde Venus (1932), A Free Soul (1931), Female (1933), The Single Standard (1929).

76. According to the subject index to the AFI catalogs, supra note 74, 98 films dealt with divorce from 1931-33 (an average of 33 per year) and 36 dealt with divorce in 1934, the year the PCA came into existence.

77. The SRC objected to this particular line of dialogue but it stayed in the film. Letter from Jason Joy to Irving Thalberg, March 7, 1930. The Divorcee is discussed in Vieira, supra note 15, at 19. The film was released only a few weeks after adoption of the 1930 Code.

78. During this era, New York law permitted divorce only upon proof of adultery. As a result, most people who wanted divorce did so through default decrees based on perjured testimony and fraudulent posed photographs. Phillips, supra note 4, at 218. If an adulterous spouse wished to resist another’s petition for divorce, the defendant could prove “recrimination,” meaning that the plaintiff had also committed adultery. The ironic result was that if both spouses had been unfaithful, they had to stay married to each other! Since Ted and Jerry’s divorce was collusive, however, no recrimination defense was offered.

79. Conceivably, the newly adopted Hays Code influenced the film’s ending. Irving Thalberg, one of the drafters of the Code, produced the film. Because the divorced couple reunited, it can be argued that the film managed to navigate around the constraints of the Code.
Another pre-Code divorce/remarriage story is What Price Hollywood (1932), the hard-edge precursor for the soggier but better known A Star is Born (1937). In the 1932 version, the movie star marries and is divorced (while she’s pregnant) by a rich polo player who can’t stand her lifestyle. The divorce was interesting and realistic; the softball remarriage ending was not. In the 1937 version, in which the star marries her alcoholic mentor, there’s no divorce.

80. Other pre-Code movies dealing in a candid manner with issues relating to marital disintegration and divorce include The Possessed (1931) (lawyer’s nasty divorce causes him to reject marriage in future relationships); Red Headed Woman (1932 ) (casual infidelities lead to divorce; bad girl sleeps her way to the top; but the nice people do remarry in the end); Call Her Savage (1932) (bad girl makes unwise marriage, gets divorced); Divorce in the Family (1932) (harsh effect of mother’s remarriage on small children); A Bill of Divorcement (1932) (wife gets divorce and remarries after husband has been in mental institution for 15 years); The Champ (1931) (divorce leaves washed up boxer with little kid); Private Lives (1931) (divorced couple remarry new spouses but ditch them and run off together).

81. Letter from Jason Joy to Irving Thalberg, supra note 77.

82. Letter from Joseph I. Breen to Val Lewton, March 23, 1940. Breen said that the film could never be approved because it condoned adultery. He also observed that the film had been cut to shreds by state and local censorship boards.

83. By this time British courts had long abandoned the rule (followed well into the 19th century) that the child is the property of the father. The custody determination in the film was undoubtedly based on the mother’s supposed fault.

84. For discussion of fault divorce, see text, at notes 144-47, infra. SRC head Jason Joy objected to Born to Love. Joy suggested that Doris and Barry be secretly married so their child would be legitimate. However, these objections came after production was nearly completed and they were ignored. Letter from Jason Joy to Charles Rogers, Feb. 13, 1931.

85. Herrick library files indicate that Platinum Blonde was never submitted to the SCA. See SCA memorandum of November 4, 1931. I encountered several other examples of serious pre-PCA films involving divorce. In The Rich are Always With Us (1932), Caroline is a wealthy woman betrayed by her husband Greg with a younger woman. After their divorce, Caroline continues to help Greg but she marries Julian who has always loved her. In Chained (1934), there are two divorces. Richard Field is a rich older man with a younger mistress, Diane Lovering. Originally Mrs. Field refuses to give Richard a divorce so he can marry Diane, but she finally relents and divorces him in Reno. Later, Richard agrees to a second divorce so Diane can marry her ne

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