# Does Lawrence invalidate adultery statutes? **URL:** \ **Category:** Great Debates\ **Created:** [May 28, 2005, 2:24pm UTC](https://boards.straightdope.com/t/does-lawrence-invalidate-adultery-statutes/305878 "2005-05-28T14:24:50Z")\ **Posts on this page:** 8\ **Page:** 1
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 28, 2005, 2:24pm UTC](https://boards.straightdope.com/t/does-lawrence-invalidate-adultery-statutes/305878/1 "2005-05-28T14:24:50Z")
In this [thread](http://boards.straightdope.com/sdmb/showthread.php?t=314841) some of us suggested that [_Lawrence v Texas_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-102) invalidates state laws against adultery. \*E.g., \* > [@](#): > > \*\*Bricker \*\* > > I agree with this – although Lawrence is not directly on point, a reasonable reading of its rationale would suggest that adultery laws now violate the Constitution. I don’t find the matter so clear cut, and neither do most commentators (at least those whose writing is available on the Internet). _E.g_., [http://writ.news.findlaw.com/grossman/20030708.html](http://writ.news.findlaw.com/grossman/20030708.html) It looks to me like Kennedy wrote himself an escape hatch here: > [@](#): > > 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. > [@](#): > > The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. Exceptions have proven important in consitutional jurisprudence. [Carolene Products](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=304&invol=144#f4) is a good example. And how far does it go? At least one court has held that it does not prevent a state from making prostitution a crime. What say you? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 28, 2005, 2:38pm UTC](https://boards.straightdope.com/t/does-lawrence-invalidate-adultery-statutes/305878/2 "2005-05-28T14:38:42Z")
Does it make a difference if the adultery was consensual (that is, all parties agree)? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 28, 2005, 5:17pm UTC](https://boards.straightdope.com/t/does-lawrence-invalidate-adultery-statutes/305878/3 "2005-05-28T17:17:43Z")
[Another article by the same author](http://writ.news.findlaw.com/grossman/20031216.html) (too soon to call Lawrence’s impact on adultery laws) ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 28, 2005, 6:18pm UTC](https://boards.straightdope.com/t/does-lawrence-invalidate-adultery-statutes/305878/4 "2005-05-28T18:18:20Z")
Wouldn’t “injury to a person … the law protects” include the spouse being cheated on? Alienation of affection laws already exist. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 28, 2005, 7:41pm UTC](https://boards.straightdope.com/t/does-lawrence-invalidate-adultery-statutes/305878/5 "2005-05-28T19:41:16Z")
> [@ElvisL1ves](#): > > Wouldn’t “injury to a person … the law protects” include the spouse being cheated on? Alienation of affection laws already exist. That’s why I wondered aloud about cases where everyone consents. Yes, one person is hurt unless all agree. Though I think many would say that even if all consent, adultery is an “abuse of an institution the law protects.” But bear in mind, “[the majority of states have abolished or severely curtailed the torts of alienation of affections and criminal conversation](http://www.montylaw.com/04_01_08_alienation.php) .” > [@](#): > > States That Still Recognize Alienation of Affections > Despite criticism that alienation of affections lawsuits are outdated, several states still recognize alienation of affections, having upheld as much as $500,000 in punitive damages for the suing spouse. States that still recognize alienation of affection include: > Illinois > Mississippi > Utah > North Carolina [http://www.divorcenet.com/states/ohio/ohart\_10](http://www.divorcenet.com/states/ohio/ohart_10) [http://www.worldlawdirect.com/article/1026/Alienation\_of\_affections\_--\_Law\_suits.html](http://www.worldlawdirect.com/article/1026/Alienation_of_affections_--_Law_suits.html) (slightly different count). Tje policy reasons behind the abolition of the tort of alienation of affection: > [@](#): > > (1) The underlying assumption of preserving marital harmony is erroneous; (2) The judicial process is not sufficiently capable of policing the often vicious out-of-court settlements; (3) The opportunity for blackmail is great since the mere bringing of an action could ruin a defendant’s reputation; (4) There are no helpful standards for assessing damages; and (5) The successful plaintiff succeeds in compelling what appears to be a forced sale of the spouse’s affections. [http://www.mrsc.org/mc/courts/supreme/100wn2d/100wn2d0739.htm](http://www.mrsc.org/mc/courts/supreme/100wn2d/100wn2d0739.htm) _and see,_ [Latest Opinions | Tennessee Administrative Office of the Courts](http://www.tsc.state.tn.us/opinions/tca/PDF/043/JonesRA.pdf) (pdf) So if we rely on the injury to the non-consenting spouse as a basis for adultery laws, we have to reconcile this justification with the fact that most states do not think that repair of the injury is worth the policy costs. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 28, 2005, 8:10pm UTC](https://boards.straightdope.com/t/does-lawrence-invalidate-adultery-statutes/305878/6 "2005-05-28T20:10:47Z")
A good discussion of the history of alienation of affection and the reasons for the abolition of the cause of action. > **[FindLaw's MO case and opinions.](https://caselaw.findlaw.com/courts/Missouri)** > > FindLaw's searchable database of MO decisions since ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 30, 2005, 4:12am UTC](https://boards.straightdope.com/t/does-lawrence-invalidate-adultery-statutes/305878/7 "2005-05-30T04:12:26Z")
OTOH The Supreme Court of Virginia invalidated Virginia’s fornication statute based on \*Lawrence \*this January. [case](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=va&vol=1040804&invol=1) [summary](http://en.wikipedia.org/wiki/Martin_v._Ziherl) [review of case](http://www.cnn.com/2005/LAW/01/25/grossman.oldlaws/) In finding the statute unconstitutional, the court said: > [@](#): > > As described in Justice Stevens’ rationale adopted by the Court > in Lawrence, decisions by married or unmarried persons > regarding their intimate physical relationship are elements of > their personal relationships that are entitled to due process > protection. . . . We find no principled way to conclude that the specific act of > intercourse is not an element of a personal relationship > between two unmarried persons or that the Virginia statute > criminalizing intercourse between unmarried persons does not > improperly abridge a personal relationship that is within the > liberty interest of persons to choose. Because Code 18.2- > 334, like the Texas statute at issue in Lawrence, is an > attempt by the state to control the liberty interest which is > exercised in making these personal decisions, it violates the > Due Process Clause of the Fourteenth Amendment. The court did not mention the part about “absent injury to a person or abuse of an institution the law protects.” This raises a fundamental question: What is the holding of _Lawrence_? Is it that “decisions by married or unmarried persons regarding their intimate physical relationship are elements of their personal relationships that are entitled to due process protection”? or is it that “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual”? It depends on what theory of precedential interpretation the next court decides to apply. [http://www.law.emory.edu/academics/orientation/lm.orientation2004.pdf](http://www.law.emory.edu/academics/orientation/lm.orientation2004.pdf) [http://www.michbar.org/journal/article.cfm?articleID=475&volumeID=35](http://www.michbar.org/journal/article.cfm?articleID=475&volumeID=35) The court certainly gives an ample basis for either interpretation. If we listen to the announced rule, the court says > [@](#): > > Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. and > [@](#): > > The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” But the next sentence undercuts need for this analysis. The court applied the rational basis test, which applies when the right in question is not a fundamental one and the statute does not discriminate against a suspect class. [http://faculty.ncwc.edu/toconnor/325/325lect03.htm](http://faculty.ncwc.edu/toconnor/325/325lect03.htm) In other words, it was not necessary to the result in this case for the court to determine whether a fundamental right existed at all. If that’s the case, and you follow the\* ratio decidendi\* approach to precendent, then that stuff is all dicta. How can we tell which theory the Supreme Court will apply? They’ve said this: When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. Cf. Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604, 613 (1990) (exclusive basis of a judgment is not dicta) (plurality); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989) (“As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law.”) (Kennedy, J., concurring and dissenting); Sheet Metal Workers v. EEOC, 478 U.S. 421, 490 (1986) (“Although technically dicta, . . . an important part of the Court’s rationale for the result that it reache[s] . . . is entitled to greater weight . . .”) (O’Connor, J., concurring). [http://straylight.law.cornell.edu/supct/html/94-12.ZO.html](http://straylight.law.cornell.edu/supct/html/94-12.ZO.html) So Rehnquist says that the Court follows the _ratio decidendi_ rule. Of course, there is another way to look at it, as the Supreme Court of Virginia did. The Court looked at the results. The Court decided that the United States Supreme Court had, in fact, applied the rational basis test. By doing so, the Virginia Court reasoned, the Supreme Court had held that there was no good reason for any law regulating consensual sex. > [@](#): > > The Supreme Court did not consider the liberty right > vindicated in Lawrence as a fundamental constitutional right > which could be infringed only if the statute in question > satisfied the strict scrutiny test. Rather, the Court applied > a rational basis test, but held that “[t]he Texas statute > furthers no legitimate state interest which can justify its > intrusion into the personal and private life of the > individual.” Id. This statement is not limited to state > interests offered by the state of Texas in support of its > statute, but sweeps within it all manner of states’ interests > and finds them insufficient when measured against the > intrusion upon a person’s liberty interest when that interest > is exercised in the form of private, consensual sexual conduct > between adults. As we have said, this same liberty interest > is invoked in this case when two unmarried adults make the > choice to engage in the intimate sexual conduct proscribed by > Code 18.2-344. Thus, as in Lawrence, the Commonwealth’s > interests do not warrant such encroachment on personal > liberty. Because the \*Lawrence \* court necessarily found that the statute did serve a legitimate state interest, this one doesn’t either. On the other hand, adultery statues might well be rationally related to a legitimate state interest, in which case, the Virginia courts logic will not invalidate those statutes. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 31, 2005, 2:52pm UTC](https://boards.straightdope.com/t/does-lawrence-invalidate-adultery-statutes/305878/8 "2005-05-31T14:52:21Z")
Giving this one final bump now that the holiday is over.