1943 Fifty Years Ago

The Colorado judge Benjamin B. Lindsey, admired for his progressive decisions and feared for his unorthodox writings on youth and marriage in the 1920s, died on March 26 in Los Angeles.

Ben Lindsey had been born in 1869 in Jackson, Tennessee, and had grown up in Tennessee and Colorado before being admitted to the bar in 1894. He became a county judge in Denver in 1901, and over the next twenty-six years there he worked up his theories of juvenile rights while gathering case histories for his most notable books, The Revolt of Modern Youth and The Companionate Marriage .

“Barnyard marriage,” was the evangelist Billy Sunday’s pithy appraisal of the judge’s 1927 work, which also drew fire from the Daughters of the American Revolution and a nation of preachers, many of whom declared Lindsey’s idea “Bolshevistic.” “Pal marriage,” “free love,” or “jazz marriage” were the preferred choices of editorial writers.

The judge himself defined the arrangement as “a legal marriage, with legalized birth control, and with the right to divorce by mutual consent for childless couples, usually without payment of alimony.” From the bench Lindsey had observed many cases in which it was just as hard for a childless couple to divorce as for one with many children. He argued that the contentious arrangement of divorce proceedings mostly suited attorneys, and the law should be more forgiving prior to the arrival of children, eliminating most alimony, which kept the man from starting a new family and kept the woman dependent.

Before his two controversial books appeared, Lindsey’s reforming court decisions had made him one of the most admired men in the country; afterward, a large segment of Americans, from carnival preachers to Walter Lippmann, found something to dislike in the judge. Lindsey pressed for the legalization of mail-order birth-control education and prescriptions for diaphragms and wanted compulsory sex education in the schools.

Lindsey missed by twenty years the revival of the “free love” debate and a second generational struggle. After he died of a heart attack, at age seventy-three, his widow distributed his ashes over his home garden and his Denver courthouse.