A Kiss is Not a Contract: 20th Century Anti-Heart Balm Statutes as Protective Legislation

During the 1930s, female legislators and activists in several states sought the legislative abolition of the “heart balm” torts of alienation of affection, breach of promise to marry, criminal conversation, and seduction. The action for breach of promise, which allowed a plaintiff to sue her former fiance for both the tangible and the emotional consequences of a broken engagement, was generally understood as the primary evil to be eliminated. Anti-heart balm campaigners relied on the familiar rhetoric of twentieth-century protective legislation, but their aims diverged significantly from traditional protectivist goals. While minimum-wage and maximum-hour statutes, for example, altered the status quo in order to grant women a heightened level of protection, anti-heart balm activists attempted to alter the common-law status quo in order to eliminatea heightened measure of protection afforded to women. Regardless, these campaigners insisted that their success would ensure a safer and more equitable world for women and children.

As the action for breach of promise implicated contractual understandings of marriage, disputes over the lawsuit served as a forum for the contestation of gendered ideals of privacy and autonomy. This paper explores the efforts of anti-breach campaigners to stake a claim to a traditionally male conception of personhood grounded in the private exercise of liberty via autonomous contract. Through an analysis of proposed and enacted legislation, as well as the statements of activists, observers, and jurists, I examine the extent to which this discourse informed the development of post-suffrage American feminism.