In February 1946, the Allied Control Council (ACC), comprising the Soviets and western Allies, enacted a new marriage law in all four occupation zones to replace existing Nazi marriage laws and restore order to the chaotic postwar occupation zones. The Allies wanted to eliminate the racist injustice of Nazi marriage and family law, but decided not to simply restore the old patriarchal German Civil Code, the Bürgerliche Gesetzbuch (BGB) of 1900, which had severely curtailed women's rights and autonomy in all matters of marriage and family. Instead, they created a new marriage law purged of the racist regulations the Nazi government had introduced, but which also reinstated some provisions of the BGB, such as the request of parental consent for marriage. With the new law, the Allied Control Council also tried to regulate several war-induced issues regarding marriage and family (such as bigamy).
Many contemporaries embraced the new law. For them, the rising numbers of divorces, increases in illegitimate births, marital strife, and the abundance of “nontraditional” families in postwar Germany indicated a “crisis of the family.” The repeal of Nazi-era legislation by the Allies in February 1946 had left many contemporaries uncertain about their rights in marriage and the family. The Allied marriage law, as largely a reiteration of the old civil code, laid down clear and familiar legal parameters for Germans. Furthermore, the ACC legislation and other related gender policies implemented by the Allies were temporary. Eventually, a new, sovereign, postwar German government would have to replace these laws. Indeed, after Germany's division in 1949, with the founding of the Federal Republic of Germany (FRG) in the West and the German Democratic Republic (GDR) in the East, the reform of family and marriage law became one important—and contested—field of legislation.
In the context of the Cold War since 1946, many policies and pieces of legislation became subject to the intensifying East-West conflict, which reached its first climax in the 1950s and early 1960s. Historian Christoph Klessmann coined the phrase “separation and interconnection” to “refer to elements of the internal structure and mutual, often barely acknowledged, influences, which are essential to the understanding of German post-war history.”Footnote 1 Gender roles, marriage, and the family were central to these inner structures and core to East and West Germans’ understandings of their own states. The parallel processes of reconstructing gender and the family through law were thus indelibly shaped by the “entangled and demarcated” East and West.Footnote 2 As critical as the Cold War was to defining the postwar gender order in each state, it is not enough to focus on the effect of this competition alone. This exploration must include the strong influence of past legislation, policies, and debates, as well as the impact of the shared past of the two German states as well.
This article thus examines the variety of ways in which ideas and discourses about gender and the family from pre-1945 Germany factored into and shaped the debates in the two post-1945 Cold War Germanys in the first two decades after the Second World War. Politicians, legal experts, female activists, trade unionists, and leaders of the Protestant and Catholic Churches in both German states engaged in heated discussions over how to reshape the family and gender roles as core institutions in their post–World War II societies. In many ways, these debates were not new. Contestation over the concept of the family dated back to the German empire and continued during and after World War I.Footnote 3 Between 1933 and 1945, the Nazis distorted the idea of the family, only allowing certain “racially pure” “Aryan” Germans to marry and create families, and excluding others, such as Jews, the disabled, and Sinti and Roma, from the same legal protections.
After 1945, the circumstances of the Cold War competition between the FRG in the West and the GDR in the East complicated the matter. In the context of the Cold War rivalry, politicians, the media, and members of society resurrected old debates over competing family models, gender ideologies, and respective legislation, which reached back to the German empire and the Weimar Republic. Legislators in the two new Germanys produced competing versions of the family and women's rights: the male-breadwinner/female-homemaker family model in the West and the dual male/female-breadwinner family model in the East, which they made into one important marker of difference between the two states and the systems they represented. West Germans proclaimed that women's “freedom of choice” in the West stood for “liberty, democracy, and capitalism,” which allowed women and especially mothers to stay at home. Meanwhile, “women's emancipation” in the East represented the “progress of socialism,” which liberated women, made them equal to men, and enabled mothers to do full-time work. For all their differences, however, the FRG and the GDR could not escape their shared history, legal traditions, and cultural norms, which fundamentally shaped their debates over gender and the family.
A vast historiography exists on the history of the family in postwar Germany. Prior studies have examined the postwar reconstruction of the family from the perspectives of social policy, legislation, consumerism, and culture.Footnote 4 Historians such as Robert G. Moeller, Carola Sachse, and Elizabeth Heineman have acknowledged that the “triangle” of pre-1933 Germany, Nazi Germany, and the other Germany in the Cold War informed post-1945 conceptions of the family and all attempts to “reconstruct” it. They have focused, however, on postwar politicians’ rejection of the Nazis’ racialized conceptions of the family. Very recently, historian James G. Chappel has contributed to this interpretation by asserting, as others before him, “that the new centrality of the family was not a retreat from ideology, as is often argued, but was in fact a reinstatement of interwar ideologies.”Footnote 5
This article also examines the resurgence of “prewar”Footnote 6 ideologies in postwar German debates after 1945 over gender and the family, but departs from prior scholarship by placing the reemergence of these discourses and practices in a comparative framework, in order to highlight their “entangled” nature. I argue that prewar lineages were evident, in a variety of ways, in both Germanys. These legacies—sometimes apparent, sometimes less so, and often intentionally wielded by politicians, the media, and society—shaped the trajectories that each piece of legislation regarding gender and the family took. In the East, the links between prewar and postwar notions of gender and the family were often ambiguous. The Socialist Unity Party (Sozialistische Einheitspartei Deutschland, SED), ruling in the GDR, certainly drew from prewar precedents, but the one-party state often actively distanced itself from the past in its rhetoric and politics. Nevertheless, a strong traditional streak persisted in the GDR, represented mainly by the Protestant Church, which often halted the ruling party in its tracks. In the West, postwar debates over gender and the family were in many ways overt replays of the earlier ideological and political struggles among Catholics, Protestants, secular liberals, and socialists under the Weimar Republic, but were rearticulated for the Cold War context. In both Germanys, the interpretation of and political usage of the past mattered immensely and had significant consequences for policy and legislation in the context of the Cold War. This article demonstrates that, despite all their proclamations of difference, the prevalence of prewar ideology meant that, on certain issues, East and West German politicians more closely resembled their neighbor than they were willing to acknowledge.
The first section of this article discusses the background of family law and policies in Germany before 1948. The second section explores how and why East German politicians rewrote their gender and family policies between 1948 and 1968. The third section examines the reform of gender and family policies and laws in the West between 1948 and 1965. The conclusion summarizes the similarities and differences between the two states and places them in a broader European context. It suggests that conceptions of gender and the family in the two postwar German states were uniquely linked, but also representative of broader trends in their respective spheres of influence in the early years of the Cold War.
German Marriage and Family Law and Policies before the Founding of the FRG and GDR
In Germany, debates over the legal rights and status of women at home and in the workplace began after the founding of the German empire in 1871. A uniform law was necessary to incorporate the different legal traditions of the twenty-five federal states united in the German empire (in addition to Alsace and Lorraine). Therefore, in 1874, the Reichstag, the new national parliament, initiated the process of drafting a common German Civil Code. In 1896, after two decades of debate and resistance from the social democrats and the socialist and bourgeois women's movements, the Reichstag finally approved the BGB, which went into effect on January 1, 1900. The BGB continued the patriarchal tradition of earlier legislation in the federal states, subordinating married women to male authority in their marriages, marital property schemes, and parental rights. Married men had the right to make all decisions for their wives and families. Men also had the rights to bar their wives from seeking paid employment outside the home and to control their wives’ property.Footnote 7 Despite the sustained resistance of the women's movements, the civil code remained in place until the fall of the German empire in 1918.Footnote 8 The legislation reflected the dominant gender ideology of the ruling elites in the German empire, which consisted of the “three Ks”—“Kinder, Küche, Kirche” (children, kitchen, church).Footnote 9
This ideology, however, ignored the reality that the majority of working-class women and mothers had to take on paid work. To respond to the demands of the growing labor movement and curtail its influence, the Reichstag passed legislation aimed at protecting working mothers, such as the Law for the Protection of Motherhood and Children and for the Equality of Women (Gesetz über den Mutter- und Kinderschutz und die Rechte der Frau, or Mutterschutzgesetz) of 1878. This legislation allowed women up to eight weeks of maternity leave, although there was no guarantee that this leave would be paid, and it typically excluded agricultural workers and domestic servants, two major sectors of female employment.Footnote 10 Industrial employment of women further increased during World War I, when the German government mobilized millions of working-class women to support the war effort by taking the places of conscripted men in factories. Most of them, however, were sent home after the war ended in the context of the demobilization policy to make space for returning soldiers, to whom the government and the trade unions had promised their old jobs after the war with the hope that a return to the breadwinner family would secure social and political peace.
The end of World War I precipitated new debates over a postwar “crisis of the family” in Germany and across Europe, which was linked to heightened public controversies over the “woman question.” Discussed indicators for the perceived family crisis were the falling birthrate, which had already been dropping since the 1880s, but had declined dramatically during the war, and rising rates of divorces and illegitimate births.Footnote 11 The large number of fallen soldiers after 1918 led to a “surplus” of 2 million women. Many widows struggled to make a living.Footnote 12 This situation convinced conservative contemporaries as well as others that the German family, an institution that was perceived as a pillar of stability in society and state, was in danger of collapse.
The post-1918 debate about the “woman question” was fed by the expansion of women's rights in Weimar Germany. The November revolution of 1918 brought women and workers universal active and passive suffrage in a new democratic republic. Socialist, social democratic, and liberal women used the debate over the Weimar constitution, implemented on August 11, 1919, as an opportunity to press for gains in women's constitutional rights. Women on the left, such as Marie Juchacz, the leader of the women's movement of the Social Democratic Party (Sozialdemokratische Partei Deutschlands, SPD), and Luise Zietz, the women's leader of the Independent Social Democratic Party (Unabhängige Sozialdemokratische Partei Deutschlands, USPD), were among the most vocal advocates. These two women requested that the National Assembly include a broadly worded “equality clause” in the new constitution for the Weimar Republic. They faced resistance from conservatives, however, who forced the SPD and USPD to compromise. The 1919 Weimar constitution thus stated in Article 109, “All Germans are equal before the law. Men and women have in principle the same civic rights and duties,” rather than the more expansive version for which women like Juchacz and Zietz had fought.Footnote 13 At the same time, the first paragraph of Article 119 determined, “Marriage, as the foundation of family life and of the preservation and growth of the nation, stands under the special protection of the constitution. It shall rest upon the equality of rights of both sexes.” The second continued, “It shall be the duty of the state (Staat) and of the municipalities to maintain the purity, health, and social welfare of the family. Families with many children shall have the right to compensatory public assistance.”Footnote 14 The combination of both articles was a compromise of the leading coalition parties of the first Weimar government, the SPD, and the Catholic Center Party (Zentrum). It was supposed to balance the new legal equality of women as citizens with upholding the family as the basis of society and state. This compromise had long-lasting effects on Germany until well into the post-1945 period.
Although the phrasing of Article 109 was limiting, it nevertheless promised constitutional equality to women as citizens for the first time.Footnote 15 The few female parliamentarians in the National Assembly and later the Reichstag (accounting for only 9.6 percent of its members in 1919), however, rarely agreed on issues related to women, marriage, and the family, including the reform of marriage and family law.Footnote 16 They mainly represented partisan positions. The parliamentary deadlock ultimately blocked any reform of the BGB from 1900, despite the protests of left-wing and liberal female parliamentarians. One of the rare subjects on which female parliamentarians worked together across party lines was the reform of the Mutterschutzgesetz from 1878.Footnote 17
The challenging economic and social conditions of the interwar period prompted many contemporaries, especially population scientists, eugenicists, and health and welfare professionals from across the political spectrum, to seek out new, more radical solutions to the perceived crises of the family and population.Footnote 18 In particular, they were worried about the declining birth rate and the “eugenic” and “racial health” of the population. National-conservative eugenicists and population scientists asserted already in the 1920s that such factors as the increased use of birth control and welfare programs were contributing to the demise of a “healthy German race.”Footnote 19 As “remedies,” they proposed sterilizing “degenerate” individuals and promoted reproduction of “healthy” Germans. Even though their ideas became increasingly popular, they did not enter the mainstream or influence governmental policy until 1932. It was under the Nazis that they reached their most extreme, government-sanctioned forms: sterilizing “feeble” or “racially inferior” Germans, encouraging marriage among “racially pure” Germans through propaganda and financial subsidies, and tightening restrictions on abortion and birth control.Footnote 20
The circumstances of World War II forced the Nazis to abandon some of their ideals and draw married women and mothers into the workforce, where, like in World War I, they again had to replace male conscripts. This made it necessary in 1942 to implement their own Mutterschutzgesetz to extend protection for pregnant women and mothers classified as Aryan. Under this legislation, these women now earned their full wages during twelve weeks of maternity leave, even if they were employed in industrial and agricultural sectors to aid the war effort. The Nazis appropriated earlier proposals from the Weimar SPD, now banned under Third Reich. Although the social democrats intended to aid women's economic independence and health protection, the Nazis had a different set of goals: encouraging the continued reproduction of “racially pure” women during the war.
After the Nazis surrendered and World War II ended in May 1945, contemporaries across Europe, but especially in occupied Germany, asserted that the war had destroyed two related pillars of society: the family and the gender order. Commentators pointed to the demographic imbalance, marital strife, skyrocketing divorce rates, proliferating out-of-wedlock births, and prevalence of “nontraditional” family structures as evidence of societal crisis. This societal panic was not new; as mentioned previously, Germans had constructed similar discourses about crisis after the First World War as well. The circumstances of total defeat in total war, however, exacerbated the conflict in the eyes of contemporaries. The “surplus” of women, for instance, was greater than it had been before. In Germany alone, for example, there were 7 million more women than men because millions of men called up to the front never returned home, or they spent years in prisoner-of-war camps while their wives took on the dual responsibilities of child-rearing and full-time work. Men who did return home often had difficulty adjusting to their wives’ newfound independence.
The fuzzy legal situation of the early occupation era was another source of contemporaries’ concerns and problems in navigating the tricky terrain of piecing their families back together. In September 1945, the Allied Control Council formally revoked Nazi-era laws and began replacing them with provisional legislation to help stabilize the country.Footnote 21 In response to the absence of marriage and family law, in February 1946, the Allies passed ACC Law Number 16, which established regulations for marriages and families.Footnote 22 As already described in the introduction, the Allies settled on partial reforms rather than a radical overhaul. In the name of denazification, the 1946 law scrapped the racist language embedded in the Nazi laws, but it did not overhaul all Nazi-era legislation related to marriage and the family. The 1946 law, for instance, upheld minor laws passed in 1933 and 1938 that overturned the 1900 BGB's regulations on entering and nullifying marriages, divorce, custody, the legal status of children born to annulled marriages, and marriage among persons already related by marriage.Footnote 23 It also reinstated several old provisions from the 1900 BGB. At the earliest stages, the Allies chose the speedier option of restoring legislation from the German empire, the Weimar Republic, and even the Third Reich to establish control over the situation on the ground and address the postwar family crisis.
Allied laws would theoretically remain in effect until the ACC dissolved itself or Germany regained its autonomy and replaced the legislation, but the Cold War complicated the issue of German sovereignty. In 1947–1948, the United States introduced the Truman Doctrine, the Marshall Plan, and currency reform in the three Western zones and the Berlin sector. Moreover, the western Allies excluded the Soviets from the London Six-Power Conference in February and March 1948. The Soviets thus withdrew from the ACC and began a constitutional convention in their occupation zone in March 1948, called the German People's Council (Deutscher Volksrat). The convention was led by the SED, which had by been formed in April 1946 by a forced merger of the two reestablished leftist parties in the Soviet zone, the Communist Party (Kommunistische Partei Deutschlands, KPD) and the SPD. Within six months, the western zones had initiated their own constitutional reforms via the Parliamentary Council (Parlamentarische Rat), which was steered by the two dominant parties in the West: on the one hand, the Christian-conservative CDU and its Bavarian sister party the Christian Social Union (Christlich-Soziale Union, CSU), and on the other the SPD. Smaller coalition partners, such as the liberal Free Democrats (Freie Demokratische Partei, FDP), the Catholic Zentrum, the right-wing German Party (Deutsche Partei, DP), and the KPD accompanied each of the leading parties. The Parliamentary Council finally approved the Basic Law (Grundgesetz) and established the FRG in May 1949. The Soviet zone followed suit in October 1949, formally founding the German Democratic Republic. With the approval of two provisional constitutions, the semipermanent division of Germany was sealed.
The partition of Germany meant that there were now two German states rebuilding their societies after the devastation of fascism and competing with each other in the Cold War. Political leaders in both German states made conscious efforts to distance themselves from the Nazi past. In the GDR, historian Konrad H. Jarausch observes, the SED “upheld antifascism as a non-communist justification for the independence of the GDR and as cement for the progressive consensus, ranging from proletarian underground to bourgeois resistance.”Footnote 24 Antifascism occupied an equally important place in West German politics, although the retention of former Nazis in public office complicated the official state narrative from the beginning.Footnote 25 The ability to cope with the Nazi past shaped both sides’ perceptions of themselves and their standing in the Cold War.
Defining themselves in opposition to the Nazis, especially when it came to gender and the family, was straightforward for East and West German political leaders. What was more difficult for them to articulate was what relationship their governments had with pre-1933 Germany. Politicians in both Germanys asserted clear differences from preceding regimes. They often only highlighted the positive legacies of policies and laws inherited from the German empire and Weimar Republic, but very seldom the Third Reich. Nevertheless, influences from the past were present. East Germany's links to the pre-1933 past were ambiguous, but still present in their language, politics, and culture. The ruling SED mainly referred to communist discourses and policies in Weimar Germany. Political deliberations over reconstructing the family in the West, in contrast, were replays of earlier debates in Weimar and even imperial Germany, now shaped in new ways by the Cold War, which dictated the terms of debates for politicians in both Germanys and across Europe as a whole.
The Family Law Reforms in the GDR, 1948–1968
From the beginning, prewar lineages and ideas about gender and the family were evident in the Soviet zone and the GDR. These precedents appeared in the earliest intraparty constitutional debates in the East in the summer of 1946. The SED was founded in April 1946 with the bold claim of finding a “German road to socialism.” Despite all the socialist rhetoric of modernity and reform, its leadership nevertheless often looked to Weimar Germany for models in their policy in the early years. For example, in 1946, SED leaders were prepared to recycle the old equal rights clause in Article 109 from the Weimar constitution without much thought, before SED leader Käthe Kern—active in the Berlin SPD during the Weimar years—and the Soviets intervened and forced the SED to change the formulation to read, “Men and women have equal rights.” To some degree, reusing the old constitution was a matter of practicality, familiarity, and expediency. It also indicated, however, that some traditions in the socialist movement had not changed. Male communist leaders still relegated women's issues to the margins and did not give them much thought. In contrast to the prewar period, however, the occupying Soviet powers had the power to force SED leaders to change their position and language.
The ruling SED, however, avoided openly admitting its faux pas and instead propagated the new constitutional clause as an improvement over past conditions. Sometimes, party leaders even promulgated the new constitution as a continuation of a tradition of individual feminism in the women's movement that, as the basis of equality, had called for women's rights as human rights and rejected the argumentation of a difference between the sexes. These arguments, too, represented a form of prewar lineages appearing in the Soviet zone. In an article published in the women's magazine Die Frau von Heute in December 1946, for instance, Kern drew direct links between the ideals of the French Revolution and the SED's goals, implicitly arguing that human rights are not only “men's rights,” but also applied to women.Footnote 26 This strategy represented a concerted effort to couch the SED's goals in a much longer tradition of efforts to emancipate women from oppressive and unequal structures such as capitalism and the patriarchal family.
At this point in late 1946 and early 1947, the fate of Germany was still uncertain. As the Cold War intensified in 1947 and early 1948, the SED pursued more radical breaks with the past and the West. The People's Council of 1948–1949, for instance, eagerly approved a new constitution with the aforementioned clause in it. It furthermore promised that all legislation opposing equality was to be overturned immediately. The SED propagated this constitution as a fundamental break with the past. The wording change had profound effects for the GDR, whose politicians were bound to rewrite old gender and family laws and policies in accordance with their new agendas as soon as possible or risk legal ambiguities. With a binding constitutional mandate, the East German government set out to rewrite all legislation opposing women's equality with men. Unlike the West, where Weimar-era political divisions resurfaced in the post-1949 debates over the reconstruction of the family, these same divisions in the East were muted after 1949. With a one-party state in place, the SED was able to define the terms of postwar debates without much opposition from other political parties.
Proclaiming itself the successor to a long socialist tradition—another point of contention in both Germanys in the early Cold War—the SED sought to implement several new laws and policies to expand women's rights. More importantly in the context of the Cold War, the SED wanted to entice women to support their communist regime and economy. Early on, building from a 1945 Soviet occupation policy, the SED promised women and men “equal wages for equal pay,” although implementation of this policy varied, especially since women tended to take on lower-paying jobs and had fewer opportunities for upward mobility.Footnote 27 Similarly, the SED pursued protective legislation for working mothers and their children. In late 1949, for instance, the Ministry of Labor and Health designed the Mutterschutzgesetz. After 1949, the SED state resurrected this legislation to fulfill its goals of a production-based economy and attract more women to full-time labor under socialism. After a few months of revisions, GDR politicians passed the Mutterschutzgesetz in September 1950. This law ultimately offered working women and mothers better workplace protections and access to state resources for raising their children.Footnote 28 Furthermore, the quick passage of the law was designed to undercut West Germany, where a similar law was in early stages of development.
Like their western counterparts, the SED knew that the Mutterschutzgesetz would draw overt comparisons to its Nazi predecessor (despite the law's much longer history). As a result, the SED actively sought to differentiate its version of the law. For example, when debating the Mutterschutzgesetz in September 1950, SED politicians Otto Grotewohl and Elli Schmidt asserted that the Nazi obsession with an “abundance of children” was for the purposes of “a criminal living space [Lebensraum] and race theory” and “war and decay.”Footnote 29 In contrast, they argued, the GDR's population policies were designed for “freedom and prosperity” and the “natural and healthy delight of building families.”Footnote 30 Moreover, they asserted that the western version was regressive and patriarchal.Footnote 31
The SED also attempted to reform marriage and family law, much like their western neighbors, but rewriting family law proved a contentious matter for the party too. Even within the party, members clung to prewar conceptions of the law. Very early on, in January 1949, in internal SED debates, leading members still expressed reluctance to overhaul certain privileges from the 1900 BGB, such as marital property regulations and the requirement that women had to adopt their husbands’ surnames.Footnote 32 Yet, in early 1950 their attitude had changed, as is indicated by the first version of its new, socialist family law, the Family Code (Familiengesetzbuch) released by the East German Ministry of Justice. SED leaders, however, were unable to implement the Family Code at this time, largely because of internal party disputes, which had little to do with the reform of marriage and family law. Instead, they incorporated in the aforementioned Mutterschutzgesetz of September 1950 some of the major reforms planned with the new law, such as prohibiting the husband's right to make all decisions and allowing married women to work outside the home, and vowed to set quotas for female political leaders. In addition, the Mutterschutzgesetz promised to rewrite the entire civil code by the end of the year, but the SED failed to do this too. In addition to a series of intraparty conflicts, the June 17, 1953, uprisings diverted the party leadership's attention elsewhere. As a result, the SED did not introduce a revised version of the legislation until June 1954 under the guidance of the new minister of justice, Hilde Benjamin, an assertive women's rights activist and longtime communist. She had taken over the position in July 1953 and stayed in office until July 1967. Under her leadership, the SED finally passed the Family Code on December 20, 1965. This new law offered a more egalitarian version of partnership and families, in which couples were mutually obligated to contribute to the support of the household and child-rearing. Couples could also pursue no-fault divorce.
One main reason for the long delay between drafting and enacting a new socialist Family Code was that the SED faced difficulties, outside of the confines of its party base, in convincing the general population of the merits of the new laws. After debuting the legislation in its major newspapers in 1954, the SED allowed discussion of the draft through controlled public forums and an official petition system.Footnote 33 Critiques of the law and opposition from the Protestant and Catholic Churches soon overwhelmed SED leaders, who promptly shut down discussion of the law in November 1954 and did not return to the issue for close to another decade. They combated a hardened sense of traditionalism, forged in the prewar period, among many East Germans, especially those who still were members of the dominant Protestant Church, throughout the 1950s. Furthermore, western religious leaders also protested the new East German law. Not until 1963, two years after SED General Secretary Walter Ulbricht ordered the construction of the Berlin Wall in August 1961 to halt the westward flight of East Germans, did the party leadership risk reintroducing family law reforms. At this point, with division far more permanent than it had been a decade before, and the suppression of the churches more firmly locked in, East German officials had the freedom to pursue a more radical version of socialist family law in 1965.Footnote 34
At several points in the law's evolution between 1946 and 1965, prewar influences were evident in the Soviet zone and the GDR. Sometimes, the SED utilized and wielded these legacies for the party's own gain, such as publishing articles linking their progress to that of the French Revolution and earlier generations of German socialists. Other times, the prewar legacies were less obvious, but still significant. SED leaders, for instance, thought little of repeating Weimar-era language until female activist Käthe Kern and Soviet leadership drew their attention to the problematic wording. At the same time, there were significant breaks with the past that shaped the path of the law as well. The absence of political plurality—a hallmark of Weimar-era politics—gave the SED the leeway to pursue far-reaching reforms. Furthermore, division was firmly cemented in 1948 and again in 1961, providing the East German state complete separation from the West. And of course, over time and in the Cold War context, party leaders turned their attention toward the Soviet Union and the construction of socialism across the Eastern bloc in a way that they never would have before 1945.
The Attempts for a Family Law Reform in the FRG, 1948–1965
Pre-1945 lineages and ideas about gender and the family were also reinstated in a variety of ways in the western zones and the FRG. One venue in which these ideologies and politics resurfaced was the Parliamentary Council, the constitutional convention in the western zones, held between September 1948 and May 1949. In many ways, the Parliamentary Council debates over the related equality and family protection clauses were replays of National Assembly debates in 1919. Thirty years earlier, social democratic and socialist women such as Marie Juchacz and Luise Zietz had unsuccessfully introduced a broader equality clause to the National Assembly.Footnote 35 When the post-1945 SPD, pushed by their female Parliamentary Council members Elisabeth Selbert and Frieda Nadig, suggested the reintroduction of the equality clause in the new Basic Law for the FRG, it was not only as a reaction to fascism, but also in homage to their predecessors and the missed opportunity in 1919, when the groundwork had already been laid. The preceding twelve years of the National Socialist dictatorship deepened the desire of female social democrats to “make a clean break with Nazi misogyny,” but they did not create these sentiments from scratch.Footnote 36
Similarly, the SPD's postwar opponents, the CDU/CSU and their smaller allies, the FDP, DP, and the Catholic Center Party, drew heavily on prewar precedents. To some degree, Moeller's assessment that “Weimar lineages of the CDU/CSU coalition were far less self-evident” is true.Footnote 37 The newly established party actively divorced itself from its pre-1933 predecessors by emphasizing its transconfessional and democratic attributes. Still, pre-1933 lineages were evident in other ways. Much like the predecessors in the 1919 National Assembly, Christian conservatives argued that equality was based on sexual difference. They cited Weimar-era thinkers such as Richard Thoma, who was a legal adviser of the Parliamentary Council and had advocated already in 1919 for distinguishing between the rights of men and women. In 1948–1949, Christian conservatives thus pointed to the combination of Article 109 and 119 in the Weimar constitution, which had balanced women's equality with the protection of the family. Some Christian conservatives even saw an opportunity in the post-1945 debates about the new Grundgesetz to reverse Weimar-era provisions. They believed, as one representative expressed it, that the Weimar constitution had gone too far and that guaranteeing “absolute equal rights” would not change “the nature of men and women.”Footnote 38
Despite the strong resistance of Christian conservatives, this time the SPD held firm and won a broader equality clause in the Grundgesetz. They almost lost this battle, however. The CDU/CSU exploited the notion of Weimar as a lost opportunity and the context of the Cold War competition to convince its allies in the Parliamentary Council to vote for a formulation that closely resembled the old Weimar constitution's wording. Meanwhile, the SPD emphasized that Weimar had been a missed opportunity to overturn discriminatory legislation, such as the BGB. The party then rallied not only the public, but also members of the FDP inside and outside of the Parliamentary Council. FDP women, such as Marie Elisabeth Lüders, a member of the Weimar National Assembly and Reichstag for the liberal German Democratic Party (Deutsche Demokratische Partei, DDP) and Herta Ilk, also a member of the DDP in Weimar years, threw their support behind the SPD and pressured their party to do the same. Lüders was well known and respected as a social scientist and reformer, and Ilk as a legal scholar. This time, unlike in 1919, the SPD was able to obtain the equality clause it wanted, but it compromised and gave the CDU/CSU and their allies again (like in the National Assembly's debates over the Weimar constitution) a family protection clause in exchange. Still, the fledgling FRG had full equal rights for men and women on paper, and its constitution promised that all legislation opposing equality would change by March 31, 1953. While the language of the Basic Law ultimately changed, the debates surrounding these changes were predicated upon resurrected prewar lineages and discourses.
The prewar lineages evident in earlier constitutional discussions reappeared in political debates over family law and family policy in the newly established FRG. The August 1949 election placed control of the Bundestag and federal government in the hands of the CDU/CSU. Because of Chancellor Konrad Adenauer, himself a Catholic, the party was more heavily weighted toward its Catholic side. Historians emphasize the prevalence of the Catholic Center Party tradition—best represented by Franz-Josef Wuermeling, appointed in 1953 to the new Federal Ministry of Family Matters—in the postwar West German debates over the family. This article suggests that there were, in fact, competing prewar ideologies that resurged after 1945. In this earlier period, between 1949 and 1953, the SPD was the major rival to the CDU/CSU, earning 29 percent of the vote in the first Bundestag election in August 1949, putting them neck and neck with the CDU's 31 percent.Footnote 39 The SPD had the support of the KPD, which captured 6 percent of the vote and maintained a small but significant presence until the party's prohibition in 1956. Meanwhile, the CDU/CSU forged a coalition with the smaller liberal and conservative parties in the Bundestag: the FDP (12 percent), the Catholic Center Party (3 percent), and the DP (4 percent).
With the constitutional mandate in mind, the newly elected parliamentarians of the Bundestag and the Christian-conservative Adenauer administration set out to reconcile women's equality with the reconstruction of the “traditional” family. In the midst of disrupted family structures, declining birth rates, and a shortage of men, Christian conservatives, social democrats, Free Democrats, and other smaller parties identified the family as the central cell and pillar of society, and therefore focused rebuilding efforts around reconstructing the family.Footnote 40
At this stage in the 1950s, almost all parties, including the SPD, imagined the family as a heteronormative institution based around the complementary contributions of a male breadwinner and a female homemaker. Gradually, they accepted the idea of part-time work for married women and mothers, pushed by employers, who needed the cheap labor of women in the booming economy, and the growing consumerism, which motivated married women and mothers to earn a “surplus” income. Starting in the late 1950s, then, the old family model of the male breadwinner and a female homemaker began to incorporate the option of part-time work for housewives and mothers.Footnote 41
One major difference among 1950s politicians was how they reconciled this idealized image with the realities of postwar life. The ruling CDU/CSU (and most DP members) sought to use policy and law to implement the “traditional” family model. The SPD (and some FDP members) saw this family model as the ideal but was more willing to reckon with the presence of working mothers, especially if they “needed” to work to sustain the family. Meanwhile, only the KPD took an extreme position and demanded women's equal rights to work.Footnote 42 A second major difference was that the Cold War context severely limited political space for leftist politics, forcing the SPD to moderate their proposals and eventually pushing the KPD out of politics and existence altogether.
Between 1949 and 1958, the Bundestag and federal government discussed and approved a number of pieces of legislation and policies aimed at restructuring gender roles. Much like in the prewar period, post-1945 West Germany offered a combination of compromises, limitations, and expansions. The Christian-conservative Adenauer administration passed a number of profamily and pronatalist policies designed to reconstruct and support the “traditional” family defined by its male breadwinner and female homemaker. In some cases, these policies were taken directly from pre-1945 debates. Western commentators suggested implementing family allowances—a system that, at least in collective memory, sounds reminiscent of Nazi policies. According to historian Robert G. Moeller, “For specifics, lawmakers could look to Nazi precedents . . . there was much to be reclaimed from the National Socialist past.”Footnote 43 Although Moeller is partially correct, he ignores the fact that the Nazis often appropriated parts of their policies from Weimar. Family allowances had already been a central part of Weimar political discourse about the family. Furthermore, to supplement male wages, Kindergeld was paid to families with three or more children in the 1950s, a measure that was also discussed already in Weimar Germany, because Article 119 of the Weimar constitution had stated, “Families of many children shall have the right to compensatory public assistance.”Footnote 44
Although family policy clearly supported a “traditional” family model, other laws expanded rights for working mothers—a much larger group now after 1945—in the workplace. The 1953 civil service reform finally allowed married women to remain in the civil service past the age of thirty-five. In addition, the 1952 Mutterschutzgesetz provided important protections for working mothers by prohibiting dangerous and night work for pregnant women. It also entitled women to maternity leave of six weeks each before and after giving birth (the same amount of time as the Nazi law of 1942). Finally, it supposedly protected pregnant women from discrimination or dismissal because of pregnancy, which was the most important new regulation.Footnote 45
The discussions of the 1952 Mutterschutzgesetz demonstrated intriguing engagements with the pre-1945 past. On the one hand, legislators hesitated to replicate Nazi-era laws. On the other hand, the SPD and other Bundestag representatives found useful elements of the 1942 legislation (partly because it reached back to regulations already discussed and implemented in Weimar Germany). During a 1951 Bundestag debate, for instance, a Catholic Center Party parliamentarian cited a 1939 decree from the minister of education that proclaimed twelve weeks of leave for pregnant and nursing schoolteachers.Footnote 46 This provision later became part of the 1942 Mutterschutzgesetz. The SPD stressed that because the Nazis had usurped the labor movement's traditions, there was nothing wrong with reusing the 1942 legislation.Footnote 47 By making this distinction, the SPD sought to situate the 1952 legislation as a successor to the pre-1933 social democratic tradition, not the Nazis.Footnote 48 Although parliamentarians were initially concerned about the perception of association with the Nazis, the reminder that the Nazis had appropriated earlier traditions freed them to pursue the Mutterschutzgesetz without worry.
Alongside maternity protection, civil service reform, and family allowances stood one of the most important laws regarding gender roles passed in the 1950s: the 1957 Equal Rights Act (Gleichberechtigungsgesetz). It offered limited reforms of the 1900 BGB by removing regulations such as the husband's right to decide disputed family issues and gave women the right to control their own property. At the same time, the 1957 Equal Rights Act still permitted men to make all decisions for the children (which effectively compromised the mother's authority) and allowed married women to work outside the home only if it was “reconcilable” with their domestic duties. This law came about as a compromise measure between social democrats, Christian conservatives, and their smaller allies, especially the FDP.Footnote 49
In their debates over the Equal Rights Act, politicians regularly utilized arguments from prewar Germany and reinterpreted them in the context of the Cold War. In particular, they resurrected discourses on totalitarianism and Bolshevism. Totalitarianism had been coined in the 1920s and applied to communism and Nazism in the early 1930s.Footnote 50 National-conservative politicians in the 1920s had often invoked fears of totalitarianism and Bolshevism as a way of undermining socialist demands for a more progressive family law. They returned to this strategy in the postwar era, retooling it in a dual attempt to distance their policies from the Nazis as well as the communists next door. In February 1954, for instance, in a discussion of the Equal Rights Act, the CDU family minister, Franz-Josef Wuermeling, warned the Bundestag to be wary of the abuse of the individual for the purposes of “state socialism” and “the goals of the omnipotent state.”Footnote 51 Here, he pointed to the conscription of “healthy young girls, as we experienced under National Socialism,” as evidence of the state's overreach. He neglected to mention that the enlistment of young women in the League of German Girls (Bund Deutscher Mädel) and the labor force under the Third Reich had little to do with the family-law reform.Footnote 52 Furthermore, Wuermeling drew clear links between the communist state in the GDR and the Nazi regime as a way of discrediting not only East German policies, but also his social democratic and communist opponents in West Germany. By implicitly equating their demands for reform with GDR policy, he tried to undermine their influence.Footnote 53 Similarly, in 1955, a Christian-conservative government official produced a brochure for West German audiences about the East German family-law reform. She argued that East German family policies and laws forced women into production and raising their children under the direction of the state and Bolshevism.Footnote 54 Arguing in the same direction, the CDU newsletter Union in Deutschland stressed in its September 1955 issue that the Bundestag did not want to repeat the policies of the Third Reich or replicate those of the GDR.Footnote 55
Debates over the Equal Rights Act also reflected prewar traditions in other ways, in particular the face-off among extraparliamentary organizations and institutions in society. On the one side, for instance, in 1952, the revitalized institutions of the Protestant and Catholic Churches disputed the draft offered by the FDP minister of justice, Thomas Dehler. Citing the papal encyclical “Casti Connubii” from December 1930, given by Pope Pius XI, Catholic priests, jurists, and Chancellor Konrad Adenauer successfully convinced Dehler to change course and reinstate several provisions he had originally intended to remove.Footnote 56 On the other side, female activists—many of whom had been active in Weimar women's associations—mobilized their communist-, social democratic, and liberal-leaning independent women's organizations reestablished after 1945 and protested the Christian conservative version of the law. Women's associations that were especially active included the German Associations of Female Citizens (Deutsche Staatsbürgerinnenverband), the German Women's Circle (Deutsche Frauenring), the German Academic Women's Association (Deutsche Akademikerinnen Bund), the German Protestant Women's Work Association (Deutsche Evangelische Frauenbund), and several local and regional women's groups.Footnote 57
As was the case in the East, prewar legacies were evident in a multiplicity of ways in the debates over West German gender policies and family laws. Sometimes, politicians intentionally resurrected old prewar arguments and reinterpreted them in the context of the Cold War, such as the discourse about totalitarianism. At other moments, prewar influences were less obvious, but still evident, such as the divisions among political parties and social organizations that steered the debates regarding the new laws. Finally, at other times, there were breaks with the past, especially in respect of the Cold War competition with the East.
Conclusion
This article has examined the different political, social, and economic factors passed down from the shared German past that shaped the creation of new marriage and family laws and policies in East and West Germany in the 1950s and 1960s. Both German states inherited several laws and institutions, such as the Mutterschutzgesetz and the civil code, from the prewar period. At times, both East and West German politicians harkened back to their prewar roots. Both sides viewed the Third Reich as an aberration. The extent to which the prewar legal system appeared in their postwar legal debates differed. In West Germany, in the wake of Nazism's destruction, postwar reconstruction, and the burgeoning Cold War, Christian-conservative and social democratic politicians were often willing to replicate pre-1933 laws if it served their purposes. In the East, the SED initially struggled to give up old legal traditions, but as the ruling party became more set on its mission to build an antifascist and socialist state, its leaders willingly abandoned tradition.
Different political cultures further informed politicians’ decisions on family laws and policies in both Germanys. West German political debates, in many ways, inherited some of the same divisions that had existed in Weimar. Although the Christian Democratic umbrella muted the confessional divides of the earlier era, it did not alter the foundational discourses and ideas present in their postwar rhetoric. In East Germany, prewar political divides were almost nonexistent. The communists had forced the social democrats into a political union. While other parties like the CDU were allowed to exist, they were forced to support the SED party line. In the GDR, then, prewar lineages dissipated after 1945.
Social and cultural factors were important as well. Institutions such as the Protestant and Catholic Churches had exerted influence over certain political parties, such as the Catholic Center Party, in the prewar period. After the war, the churches remained influential with the general population. In the West, the churches’ dogmatic arguments resonated with the Christian-conservative government but failed to sway other parties in the Bundestag. In the East, the churches wielded enough influence to delay the SED's plans. Moreover, female activists in both states drew inspiration from imperial and Weimar-era women's movements.
Economic factors mattered as well. Like their Weimar predecessors, both German states inherited postwar economies that required reconstruction from the ground up. Moreover, they inherited a largely female labor force. Although the ideal, at least in the West, was the male-breadwinner/female-homemaker family model, politicians still had to face the reality of a “surplus” of women. As they had in the Weimar years, they latched onto certain pieces of legislation, including the Mutterschutzgesetz, to deal with the prevalence of women in the workplace. At the same time, it was common for employers to push married women out of the workplace after World War I to make space for men. The post-1945 years witnessed a similar conservative backlash, resulting in the exclusion of many married women from full-time work throughout the 1950s in the West. In the East, women's labor followed the opposite trajectory.
The parallel reconstruction of the family in the postwar Germanys offers historians insights into several aspects of the two states. Gender, women's status, and the family were critical to each state's reconstruction process. The shared history of the two states provided common ground for the two diverging states. At different points, politicians on both sides of the Iron Curtain pointed to their shared past. At several moments, pre-1933 lineages became exceedingly evident in the ways that these parallel political debates played out. Yet, the Cold War competition, which pushed the two German states further and further apart, also intervened at times and severed ties with the prewar era, especially in the East.
In the broader picture, the reconstruction of gender roles and the family in the GDR and the FRG placed the two German states in a unique position in Cold War Europe. On the one hand, both states represented their respective spheres of influence. The emphasis on pronatalism and “traditional” family structures became predominant across western Europe in the postwar years. Countries such as France and Sweden attempted to influence family models and increase birth rates through such measures as family allowances.Footnote 58 Similarly, the dual-breadwinner model, far from being unique to East Germany, was prevalent across the Eastern bloc. The Soviet Union, Poland, Romania, Hungary, and other Eastern bloc states introduced very similar welfare states, social policies, and population policies to incentivize female labor.Footnote 59 As this article has shown, the prewar legacies, ideologies, and politics of gender and the family continued to play critical roles in the two German states in the early years of the Cold War.
