Even in the Weimar Republic there had been efforts to change these regulations. But the Nazi regime was in fact the first to carry out a fundamental reform, along National Socialist lines and unopposed by the Church. It used the “annexation” of Austria as the occasion to pass a new divorce law on July 6, 1938, making the former justifications for divorce invalid and creating a system whereby a marriage was judged by its significance for the “Volksgemeinschaft.” It was entirely in this sense that “refusal to propagate” and “infertility of the spouse” now counted as valid reasons for divorce. In addition, the National Socialist legislators introduced for the first time, into Section 55 of the BGB, a general concept of irreconcilable differences, according to which a marriage could be dissolved after three years of separation without a finding of guilt. The spouse who did not want the divorce could file an appeal, but the judges would decide whether sustaining the marriage was “morally” justified.163
The new law seemed to betoken a breakthrough in Hermann Esser’s deadlocked private situation. Two days after his files arrived in Berchtesgaden, on October 31, 1938, Lammers presented the situation to Hitler at the Berghof. It was hard to predict, he said, which way the judge would rule, because the principle of determining the guilty party had not been entirely abolished by the new law, and adultery still qualified as a reason for divorce that weighed heavily. As a result, there were particular problems with remarriage, since according to Section 9 of the BGB a marriage “could not take place between a person who was divorced by reason of adultery and the individual with whom that person had had the adulterous relationship, if this adultery is determined in the divorce proceedings to have been the reason for the divorce.”164
Lammers remarked to Gürtner—in confidence, he wrote—that in the discussions about the new marriage law the issue had been, above all, how to make a divorce possible “as a consequence of the objective collapse of the marriage… without it coming down to declaring one or the other spouse guilty.” In these discussions, “the Führer… had Esser’s case in mind.” If the judges refused to follow this interpretation of Section 55, Lammers threatened, “the only remaining course of action would be to consider revising the law.”165 Hitler’s interpretation was, Lammers wrote, “of special significance,” since he, as “Führer and Reich Chancellor,” was in the final analysis “the sole lawgiver of the Third Reich.” If the state court’s decision was not in favor of a divorce, Lammers wrote to Gürtner, “a second hearing of the case would have to be worked toward in as expedited a manner as possible, on the Führer’s instructions.”166 Clearly law and justice had little meaning at this point for the fifty-nine-year-old jurist, who had been educated before World War I and was an undersecretary in the Interior Ministry by the early 1920s. Lammers was prepared to put himself outside any legal framework as long as the “Führer’s” wish demanded it—no matter how personal that wish might be. As in an absolute monarchy, Hitler alone embodied the law, in Lammers’s view.167
The district court in Berlin could not resist this pressure from the very highest places. It decided in favor of the party who was actually guilty, and put the party who was legally and morally innocent in the dock. The court’s opinion of December 23, 1938, found that the defendant—that is, Esser’s wife—lacked “the true marital attitude,” since she could not show that she had “a serious will to sustain a true marriage.”168 Esser duly thanked Lammers for his “support in the matter” in a letter that same day, and reported that the district court had “announced the expected decision… today.” As a result, he said Christmas would be “a celebration of joy” for him, too, this year.169 Still, the decision was not fully legal, since Therese Esser filed the appeal to which she was entitled. Once again, the Minister of Justice intervened. Gürtner wrote to Lammers to assure him that on January 24, 1939, he had insisted in a meeting with the Lord Justice of Appeal “that the sociopolitical and population-policy considerations which the Führer put into effect by issuing this decree… be impressed upon the judges involved in the matter of this divorce.”170 The Superior Court of Justice of Berlin finally rejected Therese Esser’s appeal on March 17, 1939.
Less than three weeks later, on April 5, Hermann Esser remarried. Among the wedding guests were Adolf Hitler and Eva Braun, the Bormanns, the Morells, and Reich Treasurer Franz Xaver Schwarz and his wife.171 The presence of Hitler and Braun shows that Esser had in no way fallen into disfavor, much less been banned from the inner circle. Rather, it indicates a special, almost familial bond. Eventually, on November 10, 1940, Eva Braun would become the godmother of Esser’s daughter, who was given the name Eva.172 Hitler himself had long attended his closest followers’ weddings—those of Goebbels, Göring, Bormann, and Brandt, among others—and had been their children’s godfather. Now Eva Braun was likewise serving as the godparent of one of those followers’ children.173
“Lady of the House” at the Berghof, 1936–1939
It is not known whether Eva Braun, in her new and practically unassailable position at Hitler’s side, undertook to be anyone else’s godmother. There are suggestions, though, to indicate that Martin Bormann also named one of his daughters after her. Now, how significant was this act of becoming a godparent within the inner circle, that is, in a nonpublic sphere? Taking on duties as a godparent actually played a significant role in the Nazi regime’s propaganda campaign to increase the birthrate in Germany. Hitler himself had said about mothers: “Every child [a mother] brings into the world is a victory in the battle for the life or death of her People.” He thereby equated motherhood with being a soldier. For publicity, he personally became the godfather of every demonstrably “Aryan” family’s tenth child.174 In Esser’s case, Hitler was once again taking on the role of patron of the families of his old Party comrades. The role of patron and protector allowed him to cast himself as the keeper of the German People, in private as well as according to his public code of conduct that he exaggerated to an almost religious level and that was given widespread publicity: “I serve him with my will, I give to him my life.”175 The question arises, of course, how he could justify to himself and to those who knew his circumstances the fact that he remained unmarried and childless despite obviously living with Eva Braun.
For the National Socialists, “boosting and facilitating the will to propagate within the Volksgemeinschaft” was one of the “most pressing tasks of the rebuilding of the People.” Nazi doctors who worked in the field of “political biology” explained “intentional birth control” as a “misguided attitude in the area of character,” or even went so far as to describe it as an expression of “moral decay.”176 Hitler’s relationship with Eva Braun must therefore have caused some astonishment even in the trusted circle at the Berghof. In the Nazi regime, the personal needs of the individual were subordinated to the requirements of the “Volksgemeinschaft”; rogue actions taken for individual reasons were propagandistically condemned as embodying a “Jewish-liberal” outlook on life, and Hitler himself publicly declaimed that “of all the tasks before us, the most exalted and thus most holy human task is the preservation of the species defined by the blood given to us by God.” But he clearly judged his own private life by entirely different standards.