Gender, Sexuality and Law:
Thou Shalt Not Forbid
Adultery
or
The Application of
Democracy to Love
(Part I)
Harper Jean Tobin
Contributing Writer
Having recently married, and also started law school, it
was only natural that I should become curious about the legality of adultery.
It came as a surprise to me that adultery is still a crime in almost half the
states in the Union. But surely, I thought, no one ever gets arrested
for adultery anymore. While there has been a long tradition in our country
of criminally punishing adultery (did anyone read The Scarlet Letter in
school?), enforcement of adultery (and other “morals” offense) laws has waned
almost to insignificance since mid-century. The only clear exception to this
trend is the military, where court-martials for adultery are still a regular occurrence.
It therefore came as a surprise to many when John Bushey
of Lurey, Virginia was convicted and fined in August for having an extramarital
affair. While Bushey had at one point vowed to fight the case all the way up to
the Supreme Court, he later changed his mind and pled guilty. Though he turned
back from challenging the constitutionality of adultery laws, some analysts
think he might well have had a case.
Multiple federal courts have ruled that adultery is not
protected by the Constitution. Marcum v. McWhorter (2002) is but the
most recent of a series of cases, generally concerning employees who were
disciplined or fired because of adulterous relationships (interestingly, nearly
all of them were police officers). In all of these cases the plaintiffs argued
that their sexual relationships were protected by the First and Fourteenth
Amendment rights of intimate association and privacy. In all of these cases the
courts relied heavily on the landmark Bowers v. Hardwick (1986) - which
upheld state sodomy laws - in holding that adulterous relations were not
constitutionally protected because they violated long-standing moral and legal
traditions.
Bowers, of course, is history - overturned by the
even-more-landmark Lawrence v. Texas (2003). In essence, Lawrence
stands for the principle that the state must stay out of our bedrooms. In his
scathing dissent in Lawrence, Justice Scalia warned that “[s]tate
laws against bigamy, same-sex marriage, adult incest, prostitution,
masturbation, adultery, fornication, bestiality, and obscenity are …
sustainable only in light of Bowers' validation of laws based on moral
choices. Every single one of these laws is called into question by today's
decision.”
While
there has been no end of speculation about the accuracy of Scalia’s prediction,
no court since then has ruled on the status of adultery. Earlier this year a
Kentucky district court declined to take a stab at it in a case called Cawood
v. Haggard. Cawood, an attorney, alleged that local law enforcement invaded
his constitutional rights when it investigated his extramarital affair with a
client. The court found the case distinguishable from Lawrence because
while the latter involved “two adults who [acted with] full and mutual consent,”
Cawood’s lover had been the one to complain to the police, suggesting that “her
continued participation in sexual activities with Cawood was no longer
completely consensual.” Because sexual intimacy that is not fully consensual is
clearly not protected, the court saw no need to determine whether Lawrence
meant that adultery was constitutionally protected.
Only
time will tell what the courts will decide. As is often the case, minority
opinions in past cases point the way toward possible resolutions. If Scalia is
right - much to his chagrin - adultery laws and discrimination on the basis of adulterous
behavior will soon be history. However, the late Justice Blackmun noted in his
dissent of Bowers that adultery can be distinguished from sodomy because
it involves a breach of promise which society can rightly seek to deter.
According to this view, fornication and other “morals” laws, perhaps, must go,
but adultery can stay.
The
concurring opinion in Marcum suggests a sort of middle ground. While
relevant in determining whether it falls within the right of association, it
says, “the adulterous nature of [an
intimate] relationship alone should not be dispositive.” In addition,
courts should consider the purpose, selectivity, longevity, and exclusivity of
a relationship. A complex formula, to be sure, but it does jibe nicely with Lawrence’s
logic that sodomy is protected because it may be an essential component of a
deeper relationship. In essence, the idea is that serious affairs may be
protected, but not mere flings.
One
thing we can be fairly sure of is that the national trend of repealing adultery
laws - as the District of Columbia did this year - will continue. The European
Union no longer looks kindly on these laws, either: Turkey recently dropped a
proposal to reintroduce adultery into its criminal code amid fears it would
harm their application for EU membership.
Less clear is how it might be possible to
reconcile an expanded notion of personal liberty and sexual privacy with the
realities of deceit, betrayal, and damaged relationships that often attend adultery.
Is this properly a matter for the law at all? And if so, how might the law
better address adultery in a post-Lawrence world? Further consideration
of these issues will continue in the next edition of this column.