One Jewish Woman, Two Husbands, Three Laws: The Making of Civil Marriage and Divorce in a Revolutionary Age

Lois Dubin

Lithograph, 1884. Reprinted from Trieste nelle sue stampe sviluppo urbanistico dalla nascita dell’emporio alla fine dell’Ottocento: storia, cronaca, folclore, arte,  vita quotidiana nei secoli XVIII e XIX, 2a ed. Riv. [di] Alfieri Seri; con la consulenza iconografica di Fiorello de Farolfi. (Trieste: Italo Svevo, 1980), 119.
Lithograph, 1884. Reprinted from Trieste nelle sue stampe sviluppo urbanistico dalla nascita dell’emporio alla fine dell’Ottocento: storia, cronaca, folclore, arte, vita quotidiana nei secoli XVIII e XIX, 2a ed. Riv. [di] Alfieri Seri; con la consulenza iconografica di Fiorello de Farolfi. (Trieste: Italo Svevo, 1980), 119.

In late 1793, when the Habsburg Monarchy led the coalition against Revolutionary France and all of Europe was at war, one Jewish woman waged her own private struggle in Trieste, the thriving Habsburg free port on the Adriatic. The desperate twenty-three-year-old Rachele Morschene Luzzatto sought to extricate herself from her failing marriage to Lucio Luzzatto, a thirty-eight-year-old broker, her husband of five years, and father of their two-year-old daughter. With her father’s help, she brought her case for economic support and civil separation to the Civic and Provincial Court of Trieste. Finally, in December 1795, seeking relief from the “bitterness and . . . anxiety brought on by an ambiguous situation,” she petitioned for a civil divorce on three grounds: (1) her husband had brought the family to economic ruin; (2) he had deserted and dishonored her; (3) and most importantly, his venereal disease, syphilis, put her in mortal danger. Lucio castigated her for selfishness and impropriety, yet he claimed that his disease was cured and that the marriage should continue.

Rachele Morschene of Trieste was, in fact, one of the first European Jewish women—if not the first—to obtain a civil divorce. For more than twenty years, in Habsburg and then Napoleonic-occupied Trieste, she negotiated new civil laws of marriage and divorce as well as Jewish religious law (halakah) in her pursuit of separation, divorce, and remarriage. As I reconstruct her efforts, I treat marriage and divorce as legal norms, social institutions, lived experiences, and cultural values, and I have come to see her efforts as revealing of the intersection of religion, law, and gender at a key moment in European Jewish history. My book Rachele and Her Loves: Marriage and Divorce in a Revolutionary Age (Brandeis University Press, forthcoming) takes a microhistorical and gendered approach to the cultural and political processes of Enlightenment and Emancipation. It straddles public and private spheres to view Enlightenment and Emancipation “on the ground” and through the lenses of marriage and family. How did Enlightenment ideology offer practical solutions to pressing personal problems? How did the civil equality of Emancipation work as state intervention in domestic life, and how did the creation of civil marriage and divorce affect Jewish women in particular?

Going to a civil court to resolve marital misery was a new option for a European Jewish woman. Prior to this, Rachele would have had but one option: to go to Jewish authorities for halakic adjudication. Jewish law allows divorce and remarriage, but the essential act of divorce is the husband’s giving a get (writ of divorce) to his wife (based on Deuteronomy 24:1); a woman cannot give a get to her husband. At times, Jewish courts tried to ameliorate the situations of individual Jewish women, but they never altered this fundamental inequality of Jewish divorce law. Since Rabbenu Tam’s ruling in the twelfth century, Jewish courts have been reluctant to compel a husband to divorce his wife even when she had legitimate grounds for divorce.

In the late eighteenth century, both the Habsburg Monarchy and Revolutionary France instituted novel laws that defined marriage as a civil contract and regulated all marriages and divorces by civil law, including those of Jews. In 1783, Habsburg legislation created a dual, interlocking system. It defined marriage as civil but created no civil marriage ceremonies and left religious ceremonies intact. Civil divorce was introduced for those communities that permitted religious divorce—Jews, Protestants, and Orthodox Christians—but it was not imposed upon Catholics; still, civil courts were required to obtain religious sanction for each divorce. By contrast, in 1792 France instituted purely civil ceremonies of marriage and divorce for all and defined them as the only legally binding acts.

How did Rachele and Lucio plead their causes? A key element in her case was the graphic testimony about Lucio’s condition provided by medical experts. They were led by Dr. Benedetto Frizzi, family physician and Enlightenment intellectual who had studied with Dr. Johann Peter Frank, a pioneering crusader for public health who spread a new gospel that would alter the lives of women: venereal disease was long-lasting and incurable, and states should take proactive measures to halt its spread. As one physician argued, “to force Rachele to stay in such a marriage . . . would be to ignore basic principles and to tyrannize the human race . . . and to dishonor Religion and Nature at one and the same time.” Rachele lamented that this cohabitation, which was destroying her, body and soul, would lead to her “complete extinction.” To Chief Rabbi Tedesco of Trieste, she appealed clearly but deferentially: “I too know, though I am a woman, that a marriage is a serious matter, as is its dissolution, but I know even more that the first duty of nature is to preserve life.”

Lucio saw the question of duty differently. He argued that a wife’s conjugal duties always come first: “If illness were sufficient to allow wives to remain distant from their own husbands, then it is certain that there would hardly be found marriage in its true and legitimate connubial state.” Further, he maintained that “if a judge were to sanction wives’ disobedience and absolve them from marital dependence and submission, it would cause a total revolution in marriage.”

In 1794–95, civil judgments awarded Rachele separation and alimony. These were upheld on appeal. After Rachele and Lucio finally agreed on terms for divorce in November 1795, Rabbi Tedesco affirmed the possibility of a Jewish divorce. Sometime in April 1796, they were divorced civilly and religiously. In my view, the civil action facilitated Morschene’s subsequent religious divorce. In this case, and others, the civil law of a modern state provided moral standing and a new venue for Jewish women seeking remedies for intolerable marital situations.

At some point, Morschene and Frizzi’s friendship blossomed into romance. In 1798, they sought permission from Vienna for a “purely civil marriage.” Their predicament: the kohen Frizzi could not marry her in a religious ceremony because Jewish law forbids priestly descendants to marry repudiated women (Leviticus 21:7), and Habsburg law had not created civil marriage ceremonies. Habsburg authorities were moved by the couple’s Enlightenment arguments, especially Montesquieu’s distinction between repudiation and divorce: they claimed that Morschene was not a repudiated woman, but rather a divorced woman who had initiated her own civil divorce! Their novel arguments reinterpreted the impediment to marriage between kohen and divorcée and presented her natural and moral right to marriage. According to the couple, the “true substance of marriage . . . [was] always and forever dependent upon the sacred bond of Nature, and the free will of the contracting parties.” Morschene’s petitions for civil divorce and civil marriage articulated a natural law view of marriage as a civil contract for the purpose of procreation and for the partners’ benefit through companionship, “conjugal affection” between “souls who honestly love each other,” and “mutual aid”—all of which served society overall. Given the war between the Habsburg Monarchy and France, Frizzi and Morschene left unsaid that purely civil marriage procedures already existed in France from 1792. The couple signed a civil marriage contract of their own invention in November 1799. Vienna was convinced, but Triestine Jewish authorities resisted their instructions, upheld traditional halakah, and refused to marry the couple. In 1800, the pregnant Morschene sought damages from Frizzi, but the lovers soon resolved their quarrel and formed a long-term liaison and family without benefit of clergy or state. In 1813, when the Napoleonic Empire brought the purely civil French marriage regime to Trieste, they finally wed. Three decades later, they died three days apart in 1844.

Morschene’s story offers a comparative view of state-building by means of civil law and public health policy, and the making of civil marriage and divorce as part of the secularization of marriage and divorce. Her story illustrates marriage and divorce in transition, conditioned by new laws and practices, by enhanced roles for sentiment and individual choice, and not least, by shifting power relations within the family. While Morschene’s first marriage was an alliance of families arranged for economic self-interest, her second was a love-match forged by individuals. Developed through personal relationships and struggles, Morschene’s new horizons were ultimately framed by the Habsburg and French states—which redrew the boundaries between civil and religious, between public and private, between the body politic and the Jewish community—and by the Enlightenment—which spurred new scientific understandings of disease, health, and the role of medicine in public policy. Her strategic self-fashioning also reflected the “eighteenth-century rights revolution” that defined individuals as bearers of natural rights.

European Jews had always regulated marriage and divorce according to halakah. When modern states brought civil law into the bedroom of the Jewish nation, they created tensions between civil and religious authorities and unwittingly raised issues of individuals’ civil rights and of women’s rights and agency. Jews, both in Israel and in the Diaspora, confront these issues today, albeit in different ways. An Israeli scholar once commented ironically after hearing Morschene’s story, “If only the French had come to Israel!”

My understanding of the making of civil marriage and divorce in the late eighteenth and early nineteenth centuries is further deepened as I follow the debates that roil the contemporary American body politic: debates about civil unions and same-sex marriage, women’s roles in heterosexual marriage, and women’s sexuality and health. The state, religious authorities, families, and, not least, individuals themselves—all have a stake in deciding who has the civil right to enter and leave marriages, and on what terms.