September 07, 2004

Meaningful Sodomy, Yes; Adultery, No

by PG

In practical terms, I completely agree with Prof. Jonathan Turley's lambasting of adultery prosecutions. These "bawdy courts" are so infrequent and random -- depending entirely on the temperament of local judges, prosecutors and of course the adulterers and spouse involved -- that they do more to create legal commentary than to deter the behavior. Turley's best example of the absurd place of adultery as a "crime" is the commonplace proving and admitting of it in divorce court, without the guilty party's being handcuffed and charged. Speeding also goes unpunished most of the time, but people don't walk into courtrooms and freely declare, "Yes, Your Honor, I usually drive 80 mph."

In legal terms, however, Turley's argument seems much less sound.

Turley takes the case of John R. Bushey Jr., previously discussed at En Banc, and tries to use it to illustrate everything that's wrong with the adultery prohibition. Unfortunately, Bushey's decision to accept community service as punishment, instead of fighting the charges All The Way To The Supreme Court, means that Virginia's statute will go unchallenged for the present.

It should be obvious that such laws governing private, consensual acts are no longer valid after the Supreme Court decision in Lawrence, but the Court did not actually set these laws aside when it ruled anti-sodomy statutes unconstitutional, even though it stressed that anti-sodomy laws further "no legitimate state interest which can justify its intrusion into the personal and private life of the individual." While the Court did not address anti-fornication or adultery statutes, the dissenting justices specifically noted that the decision placed such laws in jeopardy. Self-described "morality advocates," however, have resisted. Thus, Virginia cannot criminalize the act of sodomy between consenting adults but can often prosecute the same adults for having sex in any form under the adultery law.
Actually, I don't see why this is obvious at all. Turley persistently ignores what differentiates adultery from "betraying boyfriends or girlfriends in unmarried but monogamous relationships": adultery involves marriage, and marriage -- let it be said for the millionth time -- is a legal institution. When people choose to take part in that institution, they must live under the rules that their state chooses to make for it, provided that those rules are not discriminatory.

For example, most states require that prospective spouses undergo blood tests and get a marriage license. Several states and the District of Columbia still do not permit "no fault" divorces, instead requiring people who wish to end their marriages to be separated for a period of time, ranging from six to eighteen months, and to show grounds such as cruelty, adultery, desertion, imprisonment or impotence, before they can be rid of each other.

I see nothing discriminatory in the states' varying rules for beginning and ending marriages; some prioritize ensuring a minimum of forethought before entering into a lifetime commitment; some (well, Nevada) prioritize making marriage as easy as possible. Some have a strong policy against forcing unhappy couples to stay together; some have a strong policy in favor of keeping marriages together, especially when children are involved. As long as people are allowed to marry one another without discrimination on the basis of race, religion, gender or nationality, states may impose requirements based on their legislatures' preferences.

And if one of these legislative preferences is for granting marriage only to couples who are sexually faithful -- well, if you can't take the monogamy heat, don't get into the marital kitchen, any more than you would get married without being ready to assume other responsibilities. Lawrence provides little cover here, considering Justice Kennedy's majority opinion in that case.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Marriage is an institution that the law protects, and in some views adultery is an abuse of that institution. Moreover, Kennedy sentimentally declares that constitutionally-protected sodomy is part of a Meaningful Relationship, a "personal bond that is more enduring." He refuses to see the constitutional protection he is granting as being for merely sexual acts, despite Turley's wish to read Lawrence as a purely privacy-based decision. "[L]aws governing private, consensual acts are no longer valid after the Supreme Court decision in Lawrence."

While anti-sodomy laws further "no legitimate state interest which can justify its intrusion into the personal and private life of the individual," anti-adultery laws are at least intended to strengthen the marital relationship (even if they do not practically operate to achieve this end, as the haphazard enforcement of such laws makes them pretty much useless). When states recognize marriage as a legal institution, they have a legitimate interest in keeping these relationships intact.

During this morning's online discussion, Turley made a truly absurd claim that there is an equal protection reason to decriminalize adultery.

In most states, fornication is now legal between unmarried persons. The Supreme Court has found that citizens have privacy and equal protection guarantees against anti-sodomy statutes. Yet, married persons are still subject to government intervention and prosecution.
Certainly, and married persons also are "subject to government intervention" in the scores of ways that our laws privilege marriage above other relationships. What does Turley think the whole same-sex marriage debate is about, if not giving everyone access to the special status -- and yes, special responsibilities -- of the marital relationship? Next he'll be saying that adults who adopt a child shouldn't be held to a higher standard than non-parents are. People have an equal right to marriage, but they don't have a right to marriage on whatever terms they want it.

September 7, 2004 01:41 AM | TrackBack

Excellent analysis of a fascinating topic.

Posted by: Tom T. at September 8, 2004 08:50 PM

Just wanted to say thanks for a thorough and logical review of the issue. I'm still thinking about the issue, but your views make sense. I do think the government would have to show some legitimate link between the restrictions they put in place and protection of the institution. Otherwise they could have laws such as making it illegal for members of a business partnership to have sex with people outside the partnership. Even if that law was intended to strengthen the business relationship, some showing that it had a reasonable likelihood of achieving that end and was not an unreasonable violation of other rights would seem to be pretty important. A mere statement by the government that it was a compelling interest shouldn't suffice.

Posted by: Mojo at September 9, 2004 12:43 AM

From a practical perspective, I doubt government is likely to get out of the marriage business any time soon, but in a perfect world, doing so and making marriage a contractual arrangement between individuals with any religious basis they like would be the only way to even the playing field for those of us who do not fit the societal mold that dictates that only male-female couples have the right to marry.

I am a baby-boomer polyamorist who is in a committed long term relationship with a polyamorous man. (Polyamory being the desire and ability to openly and honestly romantically love more than one person at a time, typically via long-term relationships.) He and I have chosen not to legally marry on principle, since we cannot marry each other without automatically relegating others we love to a secondary status. This may sound crazy, but I'd guess that there are thousands of Americans living this kind of life and struggling with this issue, and our numbers are growing. Most of us are very closeted for obvious reasons.

The effect of marriage laws forces us to choose not to marry in order to make our relationships work and thus denies us access to the 1,000 plus legal benefits of marriage given by right to male-female couples and to the strengthening of the bond that marriage affords. Restricting marriage to one man and one woman effectively denies us the ability to form the kind of family that works for us just as much as it does same-sex couples.

I am a citizen of the State of Virginia. I have a long-term relationship with a married man whose wife condones it and occasionally socializes with us. She has ongoing relationships with two men besides her husband. He likes both of her other loves and gets along with them just fine. As it happens, they live in Maryland, but if they lived in Virginia, they would both be committing a crime under Virginia law, which says:

18.2-365. Adultery defined; penalty.

Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.

(Code 1950, 18.1-187, 18.1-190; 1960, c. 358; 1975, cc. 14, 15.)

Interestingly, though the State does not make a distinction here for marrieds who have sexual intercourse with another with their spouse's consent, it clearly knows that such consent is sometimes given, because it is a bar to being granted a divorce on grounds of adultery:

20-94. Effect of cohabitation after knowledge of adultery, sodomy or buggery; lapse of five years.

When the suit is for divorce for adultery, sodomy, or buggery, the divorce shall not be granted, if it appear that the parties voluntarily cohabited after the knowledge of the fact of adultery, sodomy or buggery, or that it occurred more than five years before the institution of the suit, or that it was committed by the procurement or connivance of the party alleging such act.

(Code 1919, 5110; 1975, c. 644.)

States often cite an interest in the welfare of children as justification for laws that are intended to reinforce marriage. Arguments as to the validity of assertions that families like ours are harmful to children aside, in our case, our children are grown, married, and know of and are accepting of our non-traditional relationship style.

Whose interests are being served by criminalizing our kind of extra-marital sexual relationships while denying our relationships the same marriage rights as male-female couples? No one's that I can think of.

Posted by: Anita Wagner at September 11, 2004 04:57 PM
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