The Lavender Letter
The Lavender Letter
The Lavender Letter
Peter Nicolas*
INTRODUCTION .................................................................................... 97
II. THE EARLY LAW OF ADULTERY AND ITS DEVELOPMENT ............ 105
In the last century, the color lavender has come to be associated with homosexuality.
However, given the somewhat Victorian slant of the subject matter of this Article, it might alternatively
be titled The Green Letter, green being the color associated with homosexuality in Victorian England.
See DIDIER ERIBON, DICTIONNAIRE DES CULTURES GAYS ET LESBIENNES 317, 488 (2003); WAYNE
DYNES, HOMOLEXIS: A HISTORICAL AND CULTURAL LEXICON OF HOMOSEXUALITY 33 (1985); WILLIAM
STEWART, CASSELL‘S QUEER COMPANION: A DICTIONARY OF GAY LIFE AND CULTURE 107, 143 (1995).
With apologies to NATHANIEL HAWTHORNE, THE SCARLET LETTER (1850).
* Jeffrey & Susan Brotman Professor of Law, University of Washington School of Law. I wish
to thank Gabe Verdugo and Trinie Thai-Parker for their valuable research assistance, as well as
Professors Helen Anderson, Karen Boxx, Mary Fan, Jim Hardisty, Maureen Howard, Mike Townsend,
and Kathryn Watts for their valuable input.
1. See, e.g., Goodridge v. Dep‘t of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003); Lewis v.
Harris, 908 A.2d 196, 224 (N.J. 2006).
2. See Letter from Barry R. Bedrick, Assoc. Gen. Counsel, U.S. Gen. Accounting Office, to
Henry J. Hyde, Chairman, Comm. on the Judiciary, House of Representatives (Jan. 31, 1997),
available at http://www.gao.gov/archive/1997/og97016.pdf; Letter from Dayna K. Shah, Assoc. Gen.
Counsel, U.S. Gen. Accounting Office, to Bill Frist, Majority Leader, U.S. Senate (Jan. 23, 2004),
available at http://www.gao.gov/new.items/d04353r.pdf.
3. See, e.g., In re Marriage Cases, 183 P.3d 384, 418 (Cal. 2008); Guillory v. Guillory, 7 So. 3d
144, 147 (La. 2009). In some ways, of course, the divide between rights and responsibilities is an
illusory one, particularly in this context, for the flip side of the responsibility to be faithful to one‘s
spouse is the right to have your spouse remain faithful to you.
97
4. Evan Buxbaum & Edmund DeMarche, New Hampshire Eyes Repealing Law on Adultery,
CNN.com, Jan. 13, 2010, http://www.cnn.com/2010/CRIME/01/12/adultery.vote/index.html. Prior
attempts to repeal the law have failed by narrow margins. See Martin J. Siegel, For Better or for Worse:
Adultery, Crime & the Constitution, 30 J. FAM. L. 45, 49 (1991–1992). The bill introduced in 2010
likewise was not ultimately enacted into law.
5. See Scott James, Many Successful Gay Marriages Share an Open Secret, N.Y. TIMES, Jan.
29, 2010, at A17, available at http://www.nytimes.com/2010/01/29/us/29sfmetro.html.
6. See H.B. 73, 2009 Gen. Ct., 161st Sess. (N.H. 2009).
7. In re Blanchflower, 834 A.2d 1010, 1010–12 (N.H. 2003).
8. Id. at 1011.
9. Id. at 1012.
10. Bethany Catron, Case Note, If You Don’t Think This is Adultery, Go Ask Your Spouse: The
New Hampshire Supreme Court’s Faulty Interpretation of Adultery in In Re Blanchflower, 834 A.2d
1010 (2003)—Grounds for a Fault Based Divorce, 30 U. DAYTON L. REV. 339, 346 (2005).
11. See Laura W. Morgan, What Constitutes Adultery?, FAM. L. CONSULTING, Dec. 2003,
http://www.famlawconsult.com/archive/reader200312.html (―No married person thinks that his or her
spouse is adhering to the marriage vows when he or she engages in intimate sexual acts such as oral or
anal sex with another person.‖).
Although the case did not involve a married same-sex couple, the
implication of the decision for married same-sex couples in New Hampshire
is clear: their sexual relations with those other than their spouse do not
count as adultery (unless they happen to have a sexual affair with someone
of the opposite sex that includes vaginal intercourse). Nor did the New
Hampshire decision turn out to be an isolated one. Decisions from several
other jurisdictions confronted with the issue (mostly in the divorce context)
likewise held that same-sex sexual activity does not constitute adultery.12 In
contrast, decisions from numerous other jurisdictions point in the opposite
direction, holding that same-sex extramarital sexual relations constitute
adultery.13
In this Article, I explore the division in the courts over the question of
whether same-sex sexual conduct constitutes adultery in four contexts:
(1) criminal adultery prosecutions, (2) fault-based divorce actions, (3) civil
tort actions for interference with the marital relationship, and (4) murder
cases raising a provocation defense based on a spouse‘s act of adultery.
In so doing, I arrive at the following conclusions. First, as illustrated in
Part I, there is a significant overlap between states that recognize same-sex
marriage and states where adulterous conduct is legally relevant, making
this more than an interesting theoretical exercise. Second, Part II shows
that those decisions holding that same-sex conduct does not constitute
adultery do so on the basis of outdated precedents that rely on a gendered
concept of adultery that treats sexual dalliances by men and women
differently, as well as on heteronormative statutory regimes in which same-
sex adultery and opposite-sex adultery were punished differently because
all sexual activity between individuals of the same-sex was considered
unlawful. Third, Part III demonstrates that the policy arguments in favor of
maintaining any of these bases for criminal and civil liability (and there are
certainly valid arguments against their maintenance) apply with equal force
to same-sex couples and same-sex conduct as they do to heterosexual
couples and conduct. And fourth, the same equality principles that have
resulted in the extension of the right to marry to same-sex couples likewise
require the application of adultery laws and related doctrines to same-sex
couples and same-sex conduct. Indeed, a failure to apply them in those
contexts devalues same-sex relationships and perpetuates antiquated,
negative stereotypes about gay people, as argued in Part IV. As ironic as it
12. See, e.g., People v. Martin, 180 Ill. App. 578, 578 (App. Ct. 1913); H. v. H., 157 A.2d 721,
726 (N.J. Super. Ct. App. Div. 1959); W. v. W., 226 A.2d 860, 861–62 (N.J. Super. Ct. Ch. Div.
1967); Cohen v. Cohen, 103 N.Y.S.2d 426, 427–28 (Sup. Ct. 1951); Anonymous v. Anonymous, 2
Ohio N.P. 342, 342 (C.P. 1895); Glaze v. Glaze, 46 Va. Cir. 333, 334 (Cir. Ct. 1998).
13. See, e.g., Patin v. Patin, 371 So. 2d 682, 683 (Fla. 4th DCA 1979); Owens v. Owens, 274
S.E.2d 484, 485–86 (Ga. 1981); Menge v. Menge, 491 So. 2d 700, 702 (La. Ct. App. 1986); Dunn v.
Contributory Ret. Appeal Bd., 705 N.E.2d 1167, 1169 & n.2 (Mass. App. Ct. 1999); RGM v. DEM,
410 S.E.2d 564, 567 (S.C. 1991).
100 FLORIDA LAW REVIEW [Vol. 63
Contra to the way many others have read the text, I do not
take the Lawrence majority‘s reference to the continuing
potential legitimacy of the State‘s authority ―to define the
meaning of the relationship or [to set] its boundaries‖ if there
would otherwise be ―abuse of an institution the law protects‖
to be intended to address the problem of same-sex marriage.
Like so much of the rest of the majority‘s prose, this passage
is admittedly obscure, but my best guess is that the reference is
instead to something akin to the likely continuing validity of
laws prohibiting bigamy and adultery, which can be seen as
abuse of the institution of legal marriage even when
extraordinary circumstances such as spousal consent allow the
acts to take place ―absent injury to a person.‖22
Indeed, post-Lawrence, even sodomy laws can be and still are enforced,
so long as they are not enforced in settings that involve the sort of private
consensual conduct at issue in Lawrence itself. After all, the Lawrence
court was careful to distinguish the case before it from other situations:
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. 23
two consenting adults‘‖ (quoting Martin v. Ziherl, 607 S.E.2d 367, 371 (Va. 2005))).
21. Lawrence, 539 U.S. at 567 (majority opinion).
22. Mary Anne Case, Of ―This‖ and ―That‖ in Lawrence v. Texas, 2003 SUP. CT. REV. 75,
140–41 (quoting Lawrence, 539 U.S. at 567).
23. Lawrence, 539 U.S. at 578.
24. See State v. Thomas, 891 So. 2d 1233, 1237 (La. 2005); Singson v. Commonwealth, 621
S.E.2d 682, 685–88 (Va. 2005).
25. See, e.g., U.S. v. Banker, 63 M.J. 657, 659–61 (A.F. Ct. Crim. App. 2006); In re R.L.C.,
643 S.E.2d 920, 925 (N.C. 2007); McDonald v. Commonwealth, 645 S.E.2d 918, 924 (Va. 2007).
26. See U.S. v. Marcum, 60 M.J. 198, 200, 206 (C.A.A.F. 2004).
27. Siegel, supra note 4, at 49 (quoting MODEL PENAL CODE § 213.6 (1980)).
102 FLORIDA LAW REVIEW [Vol. 63
thought to be. In the military today, prosecutions for adultery are relatively
frequent.28 And as recently as 2010, officials in New York arrested and
indicted a woman on charges of adultery.29 Indeed, courts view the risk of
criminal prosecution for adultery as sufficient to justify upholding the
invocation of the privilege against self-incrimination when a witness is
asked about adulterous conduct in a civil action. 30
Moreover, setting to one side criminal prosecutions for adultery, there
are numerous other ways in which the law deems adulterous conduct to be
legally relevant. First, despite the fact that today all states offer some form
of no-fault divorce,31 thirty-four jurisdictions still provide the option of
seeking a fault-based legal separation or divorce.32 Moreover, some states
and territories use adultery as a factor in determining spousal support 33 or
property division34 upon divorce, as a basis for denying inheritance rights,35
28. Witt v. Dep‘t of the Air Force, 548 F.3d 1264, 1280 & n.35 (9th Cir. 2008) (Kleinfeld, J.,
dissenting from denial of reh‘g en banc).
29. See Eamon McNiff, Woman Charged with Adultery to Challenge New York Law, ABC
NEWS, June 8, 2010, http://abcnews.go.com/TheLaw/woman-charged-adultery-challenge-york-
law/story?id=10857437; Michael Sheridan, Woman Caught Having Sex in Park, Charged with Adultery–in New
York, N.Y. DAILY NEWS, June 8, 2010, http://www.nydailynews.com/news/national/2010/06/08/2010-06-
08_upstate_woman_charged_with_adultery_after_lewd_act_in_a_public_park.html.
30. See, e.g., Correia v. Correia, 877 N.E.2d 629, 634 n.8 (Mass. App. Ct. 2007); S.K. v. I.K.,
No. 203247-2008, 2010 WL 1371943, at *11 (N.Y. Sup. Ct. Mar. 29, 2010).
31. See generally Timothy B. Walker, Family Law in the Fifty States: An Overview, 25 FAM.
L.Q. 417, 439–40 (1992) (surveying the different types of no-fault divorces amongst the states).
32. See ALA. CODE § 30-2-1(a)(2) (2010); ALASKA STAT. § 25.24.050(2) (2010); ARIZ. REV.
STAT ANN. §§ 25-903(1), 904(1) (2010); ARK. CODE ANN. §§ 9-11-808(a)(1), (b)(1), 9-12-301(b)(4)
(2010); CONN. STAT. § 46b-40(c)(3) (2010); DEL. CODE ANN. tit. 13, §§ 1503(6), 1505(b)(2) (2010);
GA. CODE ANN. § 19-5-3(6) (2010); 19 GUAM CODE ANN. § 8203(a) (2010); IDAHO CODE ANN. § 32-
603(1) (2010); 750 ILL. COMP. STAT. ANN. 5/401(a)(1) (West 2010); LA. REV. STAT. ANN. §
9:307(A)(1) (2010); LA. CIV. CODE ANN. art. 103(2) (2010); ME. REV. STAT. ANN. tit. 19-A, §
902(1)(A) (2010); MD. CODE ANN., FAM. LAW § 7-103(a)(1) (2010); MASS. GEN. LAWS ANN. ch. 208,
§ 1 (West 2010); MISS. CODE ANN. § 93-5-1 (2010); MO. ANN. STAT. § 452.320(2)(1)(a) (West 2010);
N.H. REV. STAT. ANN. § 458:7(II) (2010); N.J. STAT. ANN. § 2A:34-2(a) (West 2010); N.M. STAT.
ANN. § 40-4-1(C) (West 2010); N.Y. DOM. REL. LAW §§ 170(4), 200(4) (McKinney 2010); N.C. GEN.
STAT. § 50-7(6) (2010); N.D. CENT. CODE § 14-05-03(1) (2010); OHIO REV. CODE ANN. §§
3105.01(C), 3105.17(A)(3) (LexisNexis 2010); OKLA. STAT. ANN. tit. 43, § 101 (West 2010); 23
PENN. CONS. STAT. ANN. § 3301(a)(2) (West 2010); P.R. LAWS ANN. tit. 31, § 321(1) (2007); R.I.
GEN. LAWS § 15-5-2(2) (2010); S.C. CODE ANN. § 20-3-10(1) (2009); S.D. CODIFIED LAWS § 25-4-
2(1) (2010); TENN. CODE ANN. § 36-4-101(a)(3) (2010); UTAH CODE ANN. § 30-3-1(3)(b) (LexisNexis
2010); VT. STAT.ANN. tit. 15, § 551(1) (2010); VA. CODE ANN. § 20-91(A)(1) (2010); W. VA. CODE
ANN. § 48-5-204 (LexisNexis 2010).
33. See FLA. STAT. § 61.08(1) (2010); GA. CODE ANN. § 19-6-1(b) (2010); S.C. CODE ANN.
§ 20-3-130(A) (2009); VA. CODE ANN. § 20-107.1(E) (2010); W.V. CODE ANN. § 48-8-104
(LexisNexis 2010).
34. See 19 GUAM CODE ANN. § 8411(a) (2010).
35. See DEL. CODE ANN. tit. 25, § 744 (2010); IND. CODE ANN. § 29-1-2-14 (West 2010); KY.
REV. STAT. ANN. § 392.090(2) (West 2010); MO. ANN. STAT. § 474.140 (West 2010); N.J. STAT. ANN.
§§ 3B:28-15, 3A:37-2 (West 2010); N.C. GEN. STAT. § 31A-1(a)(2) (2010); OHIO REV. CODE ANN. §
2103.05 (LexisNexis 2010); P.R. LAWS ANN. tit. 31, § 2261(5) (2007).
2011] APPLYING THE LAW OF ADULTERY TO SAME-SEX COUPLES AND SAME-SEX CONDUCT 103
36. See 750 ILL. COMP. STAT. ANN. 50/1(D)(j) (West 2010).
37. Caroline L. Batchelor, Comment, Falling Out of Love with an Outdated Tort: An Argument
for the Abolition of Criminal Conversation in North Carolina, 87 N.C. L. REV. 1910, 1915 n.35
(2009) (identifying Hawaii, Kansas, Maine, Mississippi, Missouri, North Carolina, Tennessee, and
Utah as states that continue to recognize the tort).
38. See 2 CHARLES E. TORCIA, WHARTON‘S CRIMINAL LAW § 165 (15th ed. 1994). See generally
Susan D. Rozelle, Controlling Passion: Adultery and the Provocation Defense, 37 RUTGERS L.J.197
(2005) (discussing competing rationales for the provocation defense).
39. ALA. CODE §§ 45-2-40.10, -13-41(k) (2010).
40. KAN. STAT. ANN. §§ 41-2601(n), -2610(b) (2010).
41. See, e.g., William N. Eskridge, Jr., Hardwick and Historiography, 1999 U. ILL. L. REV. 631,
647.
42. See Goodridge v. Dep‘t of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003).
43. N.H. REV. STAT. ANN. § 457:1-a (2010).
44. MASS. GEN. LAWS ANN. ch. 272, § 14 (West 2010); N.H. REV. STAT. ANN. § 645:3 (2010).
Indeed, Massachusetts has a second, most unusual law on the books that provides that persons divorced
from one another who thereafter cohabitate as husband and wife or live together in the same house are
guilty of adultery! See MASS. GEN. LAWS ANN. ch. 208, § 40 (West 2010).
104 FLORIDA LAW REVIEW [Vol. 63
45. Martinez v. County of Monroe, 850 N.Y.S.2d 740, 743 (App. Div. 2008).
46. Letter from Patrick C. Lynch, Attorney Gen., R.I., to Jack R. Warner, Comm‘r, R. I. Bd. of
Governors for Higher Educ. (Feb. 20, 2007), available at http://www.domawatch.org/cases/
rhodeisland/chambersvormiston/RI_AG_Opinion_on_SSM.pdf. A subsequent Rhode Island Supreme
Court case cast doubt on at least a portion of the attorney general‘s opinion. See Chambers v. Ormiston,
935 A.2d 956, 958 (R.I. 2007). But see id. at 967–68 (Suttell, J., dissenting) (noting that the majority‘s
opinion addressed only a narrow issue).
47. 95 Md. Op. Att‘y Gen. 3 (2010).
48. MD. CODE ANN., CRIM. LAW § 10-501 (West 2010); N.Y. PENAL LAW § 255.17 (McKinney
2010); R.I. GEN. LAWS § 11-6-2 (2010).
49. CONN. GEN. STAT. ANN. § 46b-20(4) (West 2010).
50. VT. STAT. ANN. tit. 15, § 8 (2010).
51. CONN. GEN. STAT. ANN. § 46b-40(c) (West 2010); MASS. GEN. LAWS ANN. ch. 208, § 1
(West 2010); N.H. REV. STAT. ANN. § 458:7(II) (2010); VT. STAT. ANN. tit. 15, § 551(1) (2010).
52. N.J. STAT. ANN. § 37:1-30 (West 2010).
53. Id. § 2A:34-2.1(a).
54. MD. CODE ANN., FAM. LAW § 7-103(a)(1) (West 2010); N.Y. DOM. REL. LAW §§ 170(4),
200(4) (McKinney 2010); R.I. GEN. LAWS § 15-5-2(2) (2010). However, the Rhode Island Supreme
Court has ruled that its family courts lack jurisdiction to grant divorces to married out-of-state couples.
See Chambers v. Ormiston, 935 A.2d 956, 967 (R.I. 2007).
55. See 95 Md. Op. Att‘y Gen. 3 (2010).
56. N.M. STAT. ANN. § 40-4-1(C) (West 2010).
57. See, e.g., State v. Saxon, 86 A. 590, 594 (Conn. 1913); Nicholson v. U.S., 368 A.2d 561,
565 (D.C. 1977) (dictum); State v. Thomas, 151 N.W. 842, 843 (Iowa 1915); Commonwealth v.
Bermudez, 348 N.E.2d 802, 805 (Mass. 1976); State v. Smith, 455 A.2d 1041, 1043 (N.H. 1983).
58. See, e.g., Bartram v. State, 364 A.2d 1119, 1153 (Md. Ct. Spec. App. 1976); People v.
Wood, 27 N.E. 362, 364–65 (N.Y. 1891); State v. Imundi, 121 A. 215, 217–18 (R.I. 1923).
2011] APPLYING THE LAW OF ADULTERY TO SAME-SEX COUPLES AND SAME-SEX CONDUCT 105
59. Siegel, supra note 4, at 46 & n.7 (citing MODEL PENAL CODE § 213.6, at 430 n.1 (1980);
Exodus 20:14 (King James); Leviticus 20:10 (King James); Deuteronomy 22:22 (King James)).
60. Exodus 20:2–17 (King James); Deuteronomy 5:6–21 (King James).
61. Exodus 20:14 (King James) (―Thou shalt not commit adultery.‖); Deuteronomy 5:18 (King
James) (―Neither shalt thou commit adultery.‖).
62. Leviticus 20:13 (King James) (―If a man also lie with mankind, as he lieth with a woman,
both of them have committed an abomination: they shall surely be put to death; their blood shall be
upon them.‖).
63. Leviticus 20:10 (King James) (―And the man that committeth adultery with another man‘s
wife, even he that committeth adultery with his neighbour‘s wife, the adulterer and the adulteress shall
surely be put to death.‖); Deuteronomy 22:22 (King James) (―If a man be found lying with a woman
married to an husband, then they shall both of them die, both the man that lay with the woman, and the
woman: so shalt thou put away evil from Israel.‖).
64. See State v. Lash, 16 N.J.L. 380, 390 (1838) (citing Leviticus 20:10 (King James);
Deuteronomy 22:22–28 (King James)); S.B. v. S.J.B., 609 A.2d 124, 125 (N.J. Super. Ct. Ch. Div.
1992) (―A biblical definition of ‗Adultery‘ is ‗the lying with a woman married to a husband‘. The
penalty for this crime was death for both the adulterer and adulteress. Historically, there could only be
adultery if the woman was married. The marital status of the male was irrelevant.‖ (internal citations
omitted) (quoting Deuteronomy 22:22 (King James) and citing Leviticus 20:10 (King James))); Moore,
supra note 15, at 222 (noting that there is not a single instance in the Bible in which a man is said to
have committed adultery with an unmarried woman (citing Lash, 16 N.J.L. at 384; Leviticus 20:10
(King James); Deuteronomy 22:22 (King James))).
65. Deuteronomy 22:22 (King James).
66. Leviticus 20:10 (King James).
67. Deuteronomy 22:28–29 (King James) (―If a man find a damsel that is a virgin, which is not
betrothed, and lay hold on her, and lie with her, and they be found; Then the man that lay with her shall
give unto the damsel‘s father fifty shekels of silver, and she shall be his wife; because he hath humbled
106 FLORIDA LAW REVIEW [Vol. 63
This gendered approach to defining adultery found its way into the
English common law. At common law in England, adultery was not, as a
general matter, treated as a crime unless it was ―‗open and notorious,‘‖ in
which case it was punished not as the independent crime of adultery but
instead under the more general rubric of ―‗public nuisance.‘‖68 But the
common law treated adultery as a private wrong for which a civil action
could be brought by the aggrieved husband.69
The meaning of adultery at English common law was clear and tracked
its definition under Biblical law: it encompassed only the situation in which
a married woman had sexual intercourse with a man—single or married—
who was not her husband.70 Thus, the marital status of the woman was the
key consideration and that of the man was irrelevant.71 As under Biblical
law, both the married woman and the man with whom she had sexual
intercourse were deemed to have committed adultery.72 Moreover,
consistent with Biblical law, sexual intercourse between a married man and
an unmarried woman at English common law, while not condoned,
constituted the lesser offense of fornication73 (an offense that also applied
to sexual intercourse between an unmarried man and an unmarried
woman74). Fornication, like adultery, was generally not treated as a crime
(unless it was open and notorious, in which case it was prosecuted under
the more general rubric of ―‗public nuisance‘‖75) but was instead a private
wrong for which a civil action could be brought. 76
Although one is tempted to conclude that the common law‘s gendered
approach to punishing extramarital sex was purely a form of male privilege,
the approach of the common law was at least arguably logically consistent
her, he may not put her away all his days.‖); see also Lash, 16 N.J.L. at 390 (―[C]ertain it is, that this
wide distinction between criminal intercourse with a married woman, and a single woman, is
emphatically settled in the Levitical law; the former being punished with death, while the latter was only
a fine‖); S.B., 609 A.2d at 125 (citing Deuteronomy 22:29 (King James)).
68. See U.S. v. Hickson, 22 M.J. 146, 147 n.1 (C.M.A. 1986) (quoting 2 CHARLES E. TORCIA,
WHARTON‘S CRIMINAL LAW § 214 (14th ed. 1979)); State v. Holland, 145 S.W. 522, 523 (Mo. Ct.
App. 1912); Lash, 16 N.J.L. at 384; Siegel, supra note 4, at 47–48; 2 TORCIA, supra note 38, § 210.
69. Lash, 16 N.J.L. at 384; State v. Bigelow, 92 A. 978, 978–79 (Vt. 1915); 3 WILLIAM
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 139 (4th ed. 1768).
70. Lash, 16 N.J.L. at 384; Bigelow, 92 A. at 978–79; State v. Roberts, 173 N.W. 310, 311
(Wis. 1919); Moore, supra note 15, at 219.
71. See Evans v. Murff, 135 F. Supp. 907, 911 (D. Md. 1955); Holland, 145 S.W. at 523;
Franzetti v. Franzetti, 120 S.W.2d 123, 127 (Tex. Civ. App. 1938); 2 TORCIA, supra note 38, § 213.
72. Hickson, 22 M.J. at 146–47; 2 TORCIA, supra note 38, § 213; Moore, supra note 15, at 219.
73. Hickson, 22 M.J. at 147; Roberts, 173 N.W. at 311; 2 TORCIA, supra note 38, § 213; Moore,
supra note 15, at 219.
74. 2 TORCIA, supra note 38, § 213; Moore, supra note 15, at 219.
75. See Hickson, 22 M.J. at 147 n.1 (quoting 2 CHARLES E. TORCIA, WHARTON‘S CRIMINAL LAW
§ 214 (14th ed. 1979)); Holland, 145 S.W. at 523; Lash, 16 N.J.L. at 384; 2 TORCIA, supra note 38,
§ 210; Siegel, supra note 4, at 47–48.
76. Lash, 16 N.J.L. at 384.
2011] APPLYING THE LAW OF ADULTERY TO SAME-SEX COUPLES AND SAME-SEX CONDUCT 107
with what it viewed as the evil associated with extramarital sex: its potential
impact on inheritance and property rights.77 The common law took the term
―adultery‖ literally, applying it only to sexual acts that might ―adulterate‖
the bloodline of a family.78 By having extramarital sex, a married woman
risked becoming pregnant and giving birth to another man‘s child, exposing
her husband to the possibility of unwittingly maintaining another man‘s
children (referred to in the case law as ―spurious issue‖ or ―spurious
offspring‖) thinking them to be his own and having them succeed to his
inheritance, thus shifting his property away from his own blood to
strangers.79 If, in contrast, a married man had sexual intercourse with an
unmarried woman, no comparable risk to property and inheritance rights
existed:80 there would be no risk that the married man‘s wife would
unwittingly think the child to be hers, and under the common law, the
illegitimate child of the unmarried woman had no right to inherit from either
the married man or his wife.81
In contrast to the common law courts, the Church of England—through
its canon law as enforced by its ecclesiastical courts—took a very different
approach to defining adultery. The ecclesiastical courts, which, among
other things, had the power to grant a divorce and to award alimony,82
viewed the evil of extramarital sex to be not its impact on property and
inheritance rights but rather its breach of the marital vows and the attendant
unhappiness and demoralization that it caused.83
Given this focus, the canon law‘s definition of adultery broke from that
of the common law (and, ironically enough, that of Biblical law) in that it
was gender-neutral: a married person, male or female, was guilty of
adultery if he or she had sexual intercourse with a third person.84 If the third
person was also married, he or she was guilty of adultery, but if the third
person was single, he or she was guilty only of fornication85 (the rationale
being that the latter did not break a marriage vow, the focus of the canon
law).86
When the Puritans imported England‘s prohibitions on adultery into the
American colonies, they broke from England by choosing to make it a
criminal offense—and a capital one at that.87 During this period, some
colonies adopted the common law definition of adultery, others the
ecclesiastical definition, and still others a hybrid of the two, a divide that
persists today across the states.88
Thus, in those U.S. jurisdictions that follow the common law, adultery is
defined as sexual intercourse between a married woman and a man not her
husband (whether married or not), with both deemed guilty of adultery;
sexual intercourse between a married man and an unmarried woman is not
adultery.89 In contrast, those jurisdictions that follow the canon law provide
that a married person, male or female, is guilty of adultery if he or she has
sexual intercourse with someone other than his or her spouse; if the third
person with whom he or she had sexual intercourse is unmarried, that third
person is only guilty of the offense of fornication.90 The hybrid jurisdictions
typically use the canon law‘s non-gendered definition of adultery in which a
married person, male or female, is guilty of the act if he or she had sexual
intercourse with someone other than his or her spouse but track the
common law in making the third person guilty of adultery without regard to
whether he or she is married or unmarried.91
Of the twenty-four state and territorial adultery statutes in existence in
the United States today, only one codifies the common law approach92
(perhaps in recognition of the problems that this gendered approach
presents under federal and state equal protection clauses and state equal
rights amendments),93 five codify the canon law approach,94 fifteen codify
the hybrid approach,95 and two criminalize adultery without defining it.96
In some instances, the statutes criminalizing adultery provide a detailed
definition, making it easy to determine whether they follow the common
law definition, the canon law definition, or some hybrid of the two. Thus,
for example, Minnesota law currently provides an explicit, common law
definition of the crime of adultery: ―When a married woman has sexual
intercourse with a man other than her husband, whether married or not,
both are guilty of adultery . . . .‖97
Similarly, Utah law provides an explicit, canonical definition of adultery:
―A married person commits adultery when he voluntarily has sexual
intercourse with a person other than his spouse[,]‖98and ―[a]ny unmarried
person who shall voluntarily engage in sexual intercourse with another is
guilty of fornication.‖99 And New York law is demonstrative of an explicit,
hybrid definition of adultery: ―A person is guilty of adultery when he
engages in sexual intercourse with another person at a time when he has a
living spouse, or the other person has a living spouse.‖100
Yet, in some states, lawmakers simply made it a crime to commit
―adultery‖ without defining the term, leaving it to the courts to interpret its
meaning.101 Maryland law is demonstrative, providing simply that ―[a]
person may not commit adultery‖ without defining the term anywhere.102
When confronted with statutes such as these, courts have been forced to
decide the question of whether the statute incorporated the common law
definition of adultery, the canon law definition, or some combination of the
two. In the context of criminal adultery statutes, the questions that arise are
two-fold: (1) does adultery require the involvement of a married woman;
and (2) if the third person is unmarried, is his or her conduct considered
adultery or merely fornication? In the context of divorce statutes, the
question is whether the wife is entitled to a divorce if her husband has
sexual intercourse with an unmarried woman. This, in turn, requires courts
to consider two threshold matters: the appropriateness of using canon law
95. ALA. CODE § 13A-13-2 (2010); ARIZ. REV. STAT. ANN. § 13-1408 (2010); FLA. STAT.
§ 798.01 (2010); IDAHO CODE ANN. § 18-6601 (2010); 720 ILL. COMP. STAT. ANN. 5/11-7 (West
2010); KAN. STAT. ANN. § 21-3507 (West 2010); MASS. GEN. LAWS ANN. ch. 272, § 14 (West 2010);
N.H. REV. STAT. ANN. § 645:3 (2010); N.Y. PENAL LAW § 255.17 (McKinney 2010); OKLA. STAT.
ANN. tit. 21, § 871 (West 2010); P.R. LAWS ANN. tit. 33, § 4147 (2007); R.I. GEN. LAWS § 11-6-2
(2010); S.C. CODE ANN. § 16-15-60 to -70 (2009); WIS. STAT. ANN. § 944.16 (West 2009). In
addition, Michigan appears to codify the variant of the hybrid approach in which the third person is
guilty of adultery if they are an unmarried man but not if they are an unmarried woman. See MICH.
COMP. LAWS ANN. §§ 750.29 to -.30 (West 2010).
96. MD. CODE ANN., CRIM. LAW § 10-501 (West 2010); MISS. CODE. ANN. § 97-29-1 (2010).
97. MINN. STAT. ANN. § 609.36(1) (West 2010).
98. UTAH CODE ANN. § 76-7-103(1) (West 2010).
99. Id. § 76-7-104(1).
100. N.Y. PENAL LAW § 255.17 (McKinney 2010).
101. See Moore, supra note 15, at 222.
102. MD. CODE ANN., CRIM. LAW § 10-501(a) (West 2010).
110 FLORIDA LAW REVIEW [Vol. 63
103. Evans v. Murff, 135 F. Supp. 907, 911 (D. Md. 1955).
104. See id.
105. State v. Lash, 16 N.J.L. 380, 385 (1838).
106. See Chase v. U.S., 7 App. D.C. 149, 154 (1895); U.S. v. Clapox, 35 F. 575, 578 (D. Or.
1888); Commonwealth v. Call, 38 Mass. (21 Pick.) 509, 511 (1839).
107. See Chase, 7 App. D.C. at 155; Clapox, 35 F. at 578; State v. Hasty, 96 N.W. 1115, 1115–
16 (Iowa 1903); Bashford v. Wells, 96 P. 663, 666 (Kan. 1908); State v. Holland, 145 S.W. 522, 523
(Mo. Ct. App. 1912); State v. Ryan, 234 P. 811, 814 (Or. 1925).
108. See Holland, 145 S.W. at 523; Ryan, 234 P. at 814. See also Call, 38 Mass. (21 Pick.) at
511 (noting that canon law definition enforces policy expressed in preamble of enforcing ―due
2011] APPLYING THE LAW OF ADULTERY TO SAME-SEX COUPLES AND SAME-SEX CONDUCT 111
Despite the fact that courts would pick either the canon law or the
common law as their tool for interpreting adultery laws, the ultimate end
product of most interpretive processes usually ended up resembling the
hybrid definition of adultery. This is because the statutes would often come
to the court with a recent legislative amendment that would partially amend
the original adultery statute by adding a sentence specifying that the statute
did apply in a given circumstance, such as when there is sexual intercourse
between a married man and an unmarried woman. While such an
amendment might thus make clear that extramarital conduct by a married
man constituted adultery, it might remain unclear whether the third party
was also guilty of adultery or merely fornication. 109 To the extent that the
rule of the amending language tracked the canon law (say, by specifying
that sexual intercourse between an unmarried woman and a married man
constitutes adultery), courts would conclude that the original language of
the statute must otherwise follow the common law (otherwise, the
amendment would not have been necessary).110 Similarly, if the rule of the
amending language tracked the common law (say, by specifying that an
unmarried man is guilty of adultery if he engages in sexual intercourse with
a married woman), courts would conclude that the original language of the
statute must otherwise follow the canon law.111 The end result was thus to
arrive at a definition of adultery that was far more encompassing than either
the common or canon law definitions standing alone.
A second interpretive question facing courts was whether the term
―adultery‖ necessarily meant the same thing in both the criminal adultery
laws and the statutes governing divorce. This question would typically
come up in the situation in which there was a clearly established definition
of the term adultery in one of the two contexts, and the court was trying to
determine its meaning in the other context.
At first blush, it seems somewhat nonsensical to interpret the term
differently in the two contexts, and thus, several courts would hold that
there was no reason to believe the term meant something different in each
of these contexts.112 Then—either by relying on earlier precedents holding
that the wife can obtain a divorce if her husband has sexual intercourse with
an unmarried woman or simply asserting that ―[n]o one would deny‖ that
the wife would have the right to obtain a divorce in that circumstance—
these courts would reason that this same conduct on her husband‘s part
113. See Call, 38 Mass. (21 Pick) at 512–13; Holland, 145 S.W. at 523; Byrum, 83 N.W. at 208;
Fellows, 6 N.W. at 239–40.
114. See Smitherman v. State, 27 Ala. 23, 25 (1855); Nelson v. Nelson, 164 A.2d 234, 235
(Conn. Super. Ct. 1960); State v. Searle, 56 Vt. 516, 518–19 (1884); see also Panhorst v. Panhorst,
390 S.E.2d 376, 378 n.3 (S.C. Ct. App. 1990).
115. See Smitherman, 27 Ala. at 25; Nelson, 164 A.2d at 235; Searle, 56 Vt. at 518–19; see also
J.L.M. v. S.A.K., 18 So. 3d 384, 391 n.5 (Ala. Civ. App. 2008) (Pittman, J., concurring in the result)
(describing as a ―dubious proposition‖ the idea that spousal-support law should precisely match the
criminal law).
116. See Hoye v. Hoye, 824 S.W.2d 422, 424 (Ky. 1992) (citing Marshall Davidson, Comment,
Stealing Love in Tennessee: The Thief Goes Free, 56 TENN. L. REV. 629, 630–31 (1989); WILLIAM L.
PROSSER, HANDBOOK OF THE LAW OF TORTS § 124, at 873 (4th ed. 1971)); 3 BLACKSTONE, supra note
69, at 139.
117. See Hoye, 824 S.W.2d at 424 (citing Marshall Davidson, Comment, Stealing Love in
Tennessee: The Thief Goes Free, 56 TENN. L. REV. 629, 630–31 (1989)); 3 BLACKSTONE, supra note
69, at 139–40.
118. Hoye, 824 S.W.2d at 424 (citing Marshall Davidson, Comment, Stealing Love in Tennessee:
The Thief Goes Free, 56 TENN. L. REV. 629, 630–31 (1989)); Helsel v. Noellsch, 107 S.W.3d 231,
2011] APPLYING THE LAW OF ADULTERY TO SAME-SEX COUPLES AND SAME-SEX CONDUCT 113
abolishing the actions altogether re-theorized the rationale for the torts.
When only husbands could bring them, the initial rationales for the torts
were both to vindicate the husband‘s property interests in his wife‘s
services128 and to compensate him for the risk of ―spurious issue‖ that the
third party‘s conduct introduced,129 thus tracking the common law rationale
for punishing adultery. The revised theory largely tracked the canon law
approach to defining adultery: preserving marital harmony by deterring
wrongful interference with it;130 providing compensatory damages for
humiliation, disgrace, dishonor, and mental suffering;131 and punishing the
invasion of the exclusive right to marital intercourse. 132
Beyond criminal and civil actions that define adultery in order to directly
punish adulterous behavior, the question of how to define ―adultery‖ has
likewise arisen in murder cases in which the defendant raises a heat-of-
passion defense based on discovering that his or her spouse has committed
adultery. Specifically, courts have had to confront the question whether the
term ―adultery‖ in this context must track the definition of adultery used in
criminal adultery statutes.
On the one hand, courts hold that, at the very least, the definition of
adultery in this context requires that there be a marriage, and thus, they
refuse to permit the defense to be raised in cases involving unmarried
couples.133 In so holding, courts will sometimes cite the definition of
adultery found in the state‘s criminal adultery statute. 134 Yet beyond that,
courts have decoupled the definition of adultery from the narrower
definition often found in criminal adultery statutes. For example, in a case in
which the criminal adultery statute only applied when the married person
128. See Hoye, 824 S.W.2d at 424; Helsel v. Noellsch, 107 S.W.3d 231, 231–32 (Mo. 2003).
129. See Hoye, 824 S.W.2d at 424; Doe v. Doe, 747 A.2d 617, 621 (Md. 2000); Oppenheim v.
Kridel, 140 N.E. 227, 228 (N.Y. 1923); Norton v. Macfarlane, 818 P.2d 8, 16 (Utah 1991).
130. See Hoye, 824 S.W.2d at 424; Helsel, 107 S.W.3d at 231–32; Russo v. Sutton, 422 S.E.2d
750, 752 (S.C. 1992).
131. See Oppenheim, 140 N.E. at 228.
132. See id.; Norton, 818 P.2d at 15–16.
133. See Somchith v. State, 527 S.E.2d 546, 548 (Ga. 2000); People v. McCarthy, 547 N.E.2d
459, 463 (Ill. 1989); People v. Eagen, 357 N.W.2d 710, 711–12 (Mich. Ct. App. 1984). As several
commentators have noted, this limitation seems questionable given the rationale for the heat-of-passion
defense. See WAYNE R. LAFAVE, CRIMINAL LAW § 7.10 (―The rule of mitigation does not, however,
extend beyond the marital relationship so as to include engaged persons, divorced couples and
unmarried lovers—as where a man is enraged at the discovery of his mistress in the sexual embrace of
another man. This limitation seems questionable, however, at least in cases where there existed a long-
standing relationship comparable to that of husband and wife.‖); Joshua Dressler, Rethinking Heat of
Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY 421, 440 (1982) (―[A]
married person who kills upon sight of adultery commits manslaughter, but an unmarried individual
who kills upon sight of unfaithfulness by one‘s lover or fiancé is a murderer. Only a highly unrealistic
belief about passion can explain this rule in terms of excusing conduct. It is implausible to believe that
when an actor observes his or her loved one in an act of sexual disloyalty, that actor will suffer from less
anger simply because the disloyal partner is not the actor‘s spouse.‖).
134. See Somchith, 527 S.E.2d at 548.
2011] APPLYING THE LAW OF ADULTERY TO SAME-SEX COUPLES AND SAME-SEX CONDUCT 115
and the third person either ―habitually‖ engaged in adultery or did so while
living together, a court concluded that what is required to invoke the heat-
of-passion defense is not adultery in its legal, criminal sense but rather in its
―ecclesiastical‖ sense, in other words, a ―violation of the marriage bed.‖135
This decoupling is, of course, consistent with the rationale for the
defense: it is, after all, the violation of the marital relationship, and not the
technical violation of the state‘s adultery laws, that triggers the emotional
response in the spouse. Moreover, given that the defense is recognized in
every state, including those lacking criminal adultery laws and fault-based
divorce schemes, adultery in the provocation context surely cannot be too
closely tied to its definition in other, substantive contexts. 136
Despite some divisions among courts, the trend of the decisions over
time has been consistent across all four of these contexts. In each of them,
the trend has been toward a broader definition of adultery that does not
differentiate between male and female extramarital conduct and that views
the harm caused by adultery to be not the risk to bloodline purity but rather
the breach of marital vows and the attendant harm to the relationship and to
families.
III. THE APPLICATION OF THE LAW OF ADULTERY TO SAME-SEX
CONDUCT
So how is it possible that a court might conclude that extra-marital
conduct between a married person and someone of the same-sex does not
constitute ―adultery‖ within the meaning of a criminal adultery statute, a
fault-based divorce scheme, or in other contexts? Cases so holding rely on
one or more of four different (but often overlapping) rationales: (1) the
statute‘s terms require sexual activity between two people of the opposite
sex; (2) the statute, while not in terms requiring that the activity occur
between two people of the opposite sex, requires (or is interpreted to
require) a form of sexual activity that can only occur between people of the
opposite sex; (3) the governing statutory scheme identifies adultery and
sodomy as distinct categories of misconduct; or (4) the statute is
ambiguous, and the court relies on the common law definition of adultery
instead of the canon law rationale.
Perhaps the most straightforward rationale for concluding that same-sex
conduct does not constitute ―adultery‖ is in the situation in which the
statute, in its terms, defines adultery as sexual activity between two people
of the opposite sex. In that situation, sexual activity with someone of the
135. See, e.g., Price v. State, 18 Tex. Ct. App. 474, 484 (1885); see also Dennis v. State, 661
A.2d 175, 180 (Md. Ct. Spec. App. 1995) (raising but not deciding the question of whether adultery in
the provocation context requires proof of coitus or whether other forms of sexual conduct suffice).
136. See Vera Bergelson, Justification or Excuse? Exploring the Meaning of Provocation, 42
TEX. TECH. L. REV. 307, 317 & n.62 (2009).
116 FLORIDA LAW REVIEW [Vol. 63
same sex simply does not meet the statutory definition of the offense. 137
Most modern adultery statutes—including all of those in states that either
permit same-sex couples to marry, or recognize same-sex marriages from
other states—use general terms such as ―person,‖138 and courts interpreting
statutes using such a generic term have sometimes relied on that to
conclude that they reach sexual activity with those other than one‘s spouse
regardless of sex.139 But a handful of adultery-related statutes use gender-
specific language, including (1) those that codify the common law
approach, which define adultery as the situation in which ―a married woman
has sexual intercourse with a man other than her husband‖;140 (2) those that
define adultery as sexual activity between a married person and someone of
―the opposite sex‖;141 and (3) those that require that the offending conduct
occur between a ―man‖ and a ―woman.‖142
Somewhat less clear-cut are those statutes falling into the second
category, whose terms do not define adultery as occurring between people
of the opposite sex but specify the type of sexual conduct constituting
adultery (or are so interpreted). A handful of statutes are extremely specific:
Kansas, for example, defines adultery as ―sexual intercourse or sodomy‖143
while New York defines it as ―sexual intercourse, oral sexual conduct or
anal sexual conduct,‖ clearly covering forms of sexual activity that can
occur between people of the same sex.144 However, most statutes, including
those of Massachusetts, New Hampshire, New York, and Rhode Island,
simply refer to ―sexual intercourse.‖145 In this instance, courts must address
137. See, e.g., People v. Martin, 180 Ill. App. 578, 580 (1913) (―The first count contains no
averment as to the sex of either J. W. Martin or Marie Watson. Even if there is a presumption as to
Marie Watson from the Christian name, there can be no presumption from the initials of J. W. Martin,
hence from anything that appears in that count the defendants may be both of the same sex. Adultery
and fornication are statutory offenses. The alleged offenses are not charged in the language of the
statute since the defendants are not averred to be a man and a woman.‖).
138. See MD. CODE ANN., CRIM. LAW § 10-501 (West 2010); MASS. GEN. LAWS ANN. ch. 272,
§ 14 (West 2010); N.H. REV. STAT. ANN. § 645:3 (2010); N.Y. PENAL LAW § 255.17 (McKinney
2010); R.I. GEN. LAWS § 11-6-2 (2010).
139. See, e.g., Owens v. Owens, 274 S.E.2d 484, 485–86 (Ga. 1981) (fault-based divorce
statute).
140. MINN. STAT. ANN. § 609.36 (West 2010) (emphasis added) (criminal adultery statute).
141. OKLA. STAT. ANN. tit. 21, § 871 (West 2010) (criminal adultery statute); S.D. CODIFIED
LAWS § 25-4-3 (2010) (fault-based divorce statute).
142. IDAHO CODE ANN. § 18-6601 (2010) (criminal adultery statute); MISS. CODE. ANN. § 97-29-1
(West 2010) (criminal adultery statute); S.C. CODE ANN. §§ 16-15-60 to -70 (2009) (criminal adultery
statute). Interestingly, Idaho, while defining adultery in gender-specific terms under its criminal adultery
statute, defines it in gender neutral terms for purposes of fault-based divorce. See IDAHO CODE ANN. §
32-604 (2010).
143. KAN. STAT. ANN. § 21-3507 (West 2010) (emphasis added) (criminal adultery statute).
144. N.Y. DOM. REL. LAW §§ 170(4), 200(4) (McKinney 2010) (emphasis added) (fault-based
divorce statute).
145. MASS. GEN. LAWS ANN. ch. 272, § 14 (West 2010); N.H. REV. STAT. ANN. § 645:3 (2010);
N.Y. PENAL LAW § 255.17 (McKinney 2010); R.I. GEN. LAWS § 11-6-2 (2010). Rhode Island‘s differs
2011] APPLYING THE LAW OF ADULTERY TO SAME-SEX COUPLES AND SAME-SEX CONDUCT 117
152. Collins v. Collins, No. 00-M-1926, 2001 WL 34012426, at *2 (N.H. Super. Ct. Oct. 25,
2001).
153. Cohen v. Cohen, 103 N.Y.S.2d 426, 427–28 (Sup. Ct. 1951).
154. Compare In re Blanchflower, 834 A.2d 1010, 1011 (N.H. 2003) (citing 1961 edition of
Webster‘s Third New International Dictionary with narrow definition and concluding that same-sex
sexual activity does not count as sexual intercourse), with Menge v. Menge, 491 So. 2d 700, 702 (La.
Ct. App. 1986) (citing 1981 edition of Webster‘s New Collegiate Dictionary with broad definition and
concluding that same-sex sexual activity counts as sexual intercourse).
155. RGM v. DEM, 410 S.E.2d 564, 567 (S.C. 1991).
156. See S.B. v. S.J.B., 609 A.2d 124, 126 (N.J. 1992).
157. CONN. GEN. STAT. ANN. § 53a-65(2) (West 2010).
2011] APPLYING THE LAW OF ADULTERY TO SAME-SEX COUPLES AND SAME-SEX CONDUCT 119
158. See, e.g., Glaze v. Glaze, No. HJ-1323-4, 1998 WL 972306, at *2 & n.1 (Va. Cir. Ct. Aug.
31, 1998).
159. Cohen v. Cohen, 103 N.Y.S.2d 426, 428 (Sup. Ct. 1951).
160. See JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE, AND
EVIDENCE IN MATRIMONIAL SUITS § 474, at 447–48 (3d ed. 1859); see also An Act to Amend the Law
Relating to Divorce and Matrimonial Causes in England, 1857, 20 & 21 Vict., c. 85, § 27 (Eng.);
Matrimonial Causes Act, 1937,1 Edw. 8 & 1 Geo. 6, c. 57, § 11 (Eng.).
161. See ALA. CODE § 30-2-1(a)(2), (5) (2010); DEL. CODE ANN. tit. 13, §§ 1503(6), 1505(b)(2)
(2010); N.J. STAT. ANN. § 2A:34-2(a), (h) (West 2010); VA. CODE ANN. § 20-91(A)(1) (2010); see
also In re Marriage of Pascavage, No. 923-86, 1994 WL 838136, at *4 n.8 (Del. Fam. Ct. Aug. 15,
1994) (citing Panama statute); Grove v. Grove, No. 0251-93-3, 1994 WL 259324, at *2 n.1 (Va. Ct.
App. June 14, 1994) (citing North Carolina statute); SUZANNE REYNOLDS, LEE‘S NORTH CAROLINA
FAMILY LAW § 5.46(B), at 407 & Supp. at 63–64 (5th ed. 1993 & Supp. 2008) (noting that an earlier
version of the North Carolina statute listed adultery and homosexual acts as separate grounds). While
unclear on the question of whether an act of sodomy is a form of adultery or an independent ground of
divorce, several early decisions and sources have indicated that sodomy qualifies as ―extreme cruelty,‖
an independent ground of divorce found in most states. See W. v. W., 226 A.2d 860, 861–62 (N.J.
120 FLORIDA LAW REVIEW [Vol. 63
Super. Ct. Ch. Div. 1967); H. v. H., 157 A.2d 721, 726 (N.J. Super. Ct. App. Div. 1959); Anonymous
v. Anonymous, 2 Ohio N.P. 342, 342 (C.P. 1895); Poler v. Poler, 73 P. 372, 373 (Wash. 1903) (citing
1 JOEL PRENTISS BISHOP, MARRIAGE, DIVORCE, AND SEPARATION § 1830, at 755 (1891); JOEL
PRENTISS BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE, AND EVIDENCE IN
MATRIMONIAL SUITS § 474, at 447–48 (3d ed. 1859); JAMES SCHOULER, A TREATISE ON THE LAW OF
THE DOMESTIC RELATIONS § 220b, at 314–16 (4th ed. 1889); JAMES SCHOULER, A TREATISE ON THE
LAW OF HUSBAND AND WIFE, § 525, at 553 (1882); 9 AM. & ENG. ENCYC. OF LAW 747, 764 (2d ed.
1898)).
162. Cf. Giles v. California, 128 S. Ct. 2678, 2686 (2008) (―Judges and prosecutors also failed to
invoke forfeiture as a sufficient basis to admit unconfronted statements in the cases that did apply the
dying-declarations exception. This failure, too, is striking. At a murder trial, presenting evidence that the
defendant was responsible for the victim‘s death would have been no more difficult than putting on the
government‘s case in chief. Yet prosecutors did not attempt to obtain admission of dying declarations
on wrongful procurement-of-absence grounds before going to the often considerable trouble of putting
on evidence to show that the crime victim had not believed he could recover.‖).
163. MD. CODE ANN., CRIM. LAW § 10-501(a) (West 2010). Although one lower federal court has
interpreted the scope of the Maryland adultery statute in the context of federal immigration law, Evans
v. Murff, 135 F. Supp. 907, 911 (D. Md. 1955), an appellate court in Maryland has noted that the
state‘s own courts have not yet determined whether it encompasses the common law or canon law
definition, Payne v. Payne, 366 A.2d 405, 409–10 (Md. Ct. Spec. App. 1976).
164. See supra note 32.
2011] APPLYING THE LAW OF ADULTERY TO SAME-SEX COUPLES AND SAME-SEX CONDUCT 121
may arise . . . .‘‖165 The court then reasoned that ―[a]s ‗spurious issue‘ can
only arise from intercourse between a man and a woman, criminal adultery
could only be committed with a person of the opposite gender.‖166
By citing the ―spurious issue‖ language of earlier cases, the court
majority was wittingly, or unwittingly, endorsing the common law concept
of adultery. Yet, in this regard, the court‘s conclusion was inconsistent with
the text of the then-existing New Hampshire criminal adultery statute;
developments in the meaning of the term ―adultery‖ in other, related areas
of the law; and the trend nationally in interpreting the meaning of the phrase
adultery.
As demonstrated earlier, the ―spurious issue‖ rationale for adultery laws
is the common law rationale, under which not only would same-sex sexual
activity not constitute adultery but neither would opposite-sex sexual
activity between a married man and an unmarried woman. Yet New
Hampshire‘s current criminal adultery statute, which was extant at the time
the New Hampshire Supreme Court case was decided, clearly rejects the
gendered common law approach in favor of the canon law one, providing
that someone is guilty of adultery if ―being a married person, he engages in
sexual intercourse with another not his spouse . . . .‖167 Moreover, as early
as 1890, the New Hampshire Supreme Court had expanded the common
law cause of action for criminal conversation—the tort analogue to the
crime of adultery—so as to allow not just the husband to bring such actions
against those who have sexual intercourse with their wives but also to
permit wives to bring such actions against those who have sexual
intercourse with their husbands,168 an expansion that is consistent with the
canon law approach to adultery and inconsistent with the common law
―spurious issue‖ rationale. The majority brushed to one side arguments that
it should interpret the term adultery to cover non-coital acts on the ground
that such an interpretation would be most consistent with a focus on
―marital loyalty‖ and a ―disfavor of one spouse‘s violation of the marriage
contract with another‖—the language of the canon law—reasoning that
such a legislative purpose was nowhere to be found. 169
In contrast to the New Hampshire court, courts in other jurisdictions
have interpreted the term adultery as used in their fault-based divorce
statutes as encompassing same-sex extramarital conduct.170 Although few
165. In re Blanchflower, 834 A.2d 1010, 1011–12 (N.H. 2003) (quoting State v. Wallace, 9 N.H.
515, 517 (1838)).
166. Id. at 1012.
167. N.H. REV. STAT. ANN. § 645:3 (2010) (emphasis added).
168. See Feldman v. Feldman, 480 A.2d 34, 36 (N.H. 1984) (citing Seaver v. Adams, 19 A. 776,
776–77 (N.H. 1890)).
169. In re Blanchflower, 834 A.2d at 1012.
170. See Patin v. Patin, 371 So. 2d 682, 683 (Fla. 4th DCA 1979); Menge v. Menge, 491 So. 2d
700, 702 (La. Ct. App. 1986) (citing Adams v. Adams, 357 So. 2d 881, 882 (La. Ct. App. 1978)); S.B.
v. S.J.B., 609 A.2d 124, 126–27 (N.J. Super. Ct. Ch. Div. 1992); RGM v. DEM, 410 S.E.2d 564,
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provide much analysis, those that do clearly embrace the language of the
canon law, focusing on the breach of the marital vow and its attendant
injury to the other spouse.171
Case law interpreting the application of the torts of criminal
conversation and alienation of affections to same-sex extramarital conduct
is almost non-existent. This may be in part due to the fact that only a
handful of jurisdictions still recognize these causes of action; in the 20th
Century, most states abolished the causes of action either through common
law decisions or by means of so-called ―heart balm‖ statutes.172 Of the
states that permit or potentially recognize same-sex marriage, all have
abolished these causes of action,173 with the possible exception of New
Mexico.174 One Arkansas decision upheld (with little discussion) the
application of the tort of alienation of affections in the case of a
heterosexual married couple in which the wife had a relationship with
another woman.175 To be sure, the policies in favor of applying it are the
same; however, once one identifies harm to the marital relationship as the
focus of the torts, it makes no difference whether the harm is caused by a
third party of the same sex or whether it involves a marriage between two
people of the same-sex.176
However, a handful of cases have considered the applicability of two
other ―heart balm‖ causes of action—breach of a promise to marry and
seduction of a child—to same-sex couples and same-sex conduct.
177. See Jeffrey D. Kobar, Note, Heartbalm Statutes and Deceit Actions, 83 MICH. L. REV. 1770,
1770 (1985). It is a hybrid tort-contract action in that it sounds in contract (the contract being the
mutual promises to marry), but the damages are based on tort principles in that the plaintiff is able to
recover for such things as loss to reputation, mental anguish, and injury to health, in addition to
recovering for expenditures made in preparation for the marriage and loss of the pecuniary and social
advantages that the promised marriage offered. See Bukowski v. Kuznia, 186 N.W. 311, 311–12
(Minn. 1922); Stanard v. Bolin, 565 P.2d 94, 96 (Wash. 1977); Kyle Graham, Why Torts Die, 35 FLA.
ST. U. L. REV. 359, 407 (2008); Kobar, supra. In addition, some states allow for aggravated and
punitive damages under certain circumstances, such as when the defendant‘s acts were malicious or
fraudulent. See Stanard, 565 P.2d at 96.
178. See, e.g., MASS. GEN. LAWS ch. 207, § 47A (2010).
179. See Cliff v. Pinto, 60 A.2d 704, 704–07 (R.I. 1948). See also R.I. GEN. LAWS ANN. § 9-1-42
(2010) (eliminating all other heart balm causes of action except breach of promise to marry).
180. See MD. CODE ANN., FAM. LAW § 3-102 (West 2010) (allowing the action to be brought if
the plaintiff is pregnant).
181. The New Mexico Supreme Court adjudicated a case in which breach of promise of marriage
was raised, but the case was decided on grounds unrelated to whether the action exists. State ex. rel.
Peteet v. Frenger, 278 P. 208, 208–09 (N.M. 1929).
182. See State ex. rel. D.R.M., 34 P.3d 887, 898 (Wash. Ct. App. 2001).
183. See, e.g., Cade v. Thompson, 225 P.2d 396, 400 (Or. 1950); see also OR. REV. STAT. ANN.
§§ 31.980, .982 (West 2010) (abolishing criminal conversation and alienation of affections but not
other heart balm actions).
184. See 3 RESTATEMENT (SECOND) OF TORTS § 701 & cmt. c (1977); 2 DOBBS, supra note 119,
§ 443.
185. See Edwards v. Moore, 699 So. 2d 220, 221–23 (Ala. Civ. App. 1997); Franklin v. Hill, 444
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have, through their heart balm statutes, eliminated the cause of action for
seduction,186 a number of states did not abolish them. 187 The only case to
consider the issue in the context of same-sex seduction appeared to view
that as falling squarely within the scope of the tort. 188
Few decisions have addressed the question whether the heat-of-passion
defense based on witnessing an act of spousal adultery applies to same-sex
conduct. A Louisiana court rejected the defense in the context of a case in
which the defendant killed his same-sex partner after allegedly catching him
in an act of adultery. While citing its prior decisions holding that same-sex
extramarital conduct constituted adultery, the court rejected the claim on
the ground that the two were not married to one another, which, as
described earlier, is an accepted requirement for invoking the defense. 189
IV. WHY DOES IT MATTER?
When confronted with the question of whether criminal adultery laws
and related doctrines should be deemed applicable to same-sex couples and
same-sex conduct, one might be tempted to shrug her shoulders and view it
as irrelevant or even a good thing. Possible reactions might range anywhere
from viewing it as technically interesting but ultimately irrelevant, reasoning
that a person seeking a divorce can simply state a different ground (sodomy
or homosexuality, say, instead of adultery), or the government can
prosecute the person on a different ground (for committing sodomy, say,
instead of adultery). Alternatively, one might view it as a good thing: for
once, there is an area of the law in which heterosexuals, rather than
homosexuals, get treated more harshly. Yet, I contend that for numerous
reasons, important principles of equality on the basis of gender and sexual
orientation are furthered by interpreting adultery laws and related doctrines
to apply to same-sex conduct, and by amending those that fail to be so
interpreted.
First, to the extent that the law punishes opposite-sex adultery while
leaving same-sex adultery unpunished, it is perpetuating a form of sexual
orientation discrimination built upon a form of sex discrimination: the
punishment or lack thereof turns solely on the gender of the individuals
involved in the act of adultery. This is the same equality-based argument
S.E.2d 778, 779 & n.1, 780–81 (Ga. 1994); see also Destefano v. Grabrian, 763 P.2d 275, 291 & n.1
(Colo. 1988) (Mullarkey, J., specially concurring); Parker v. Bruner, 683 S.W.2d 265, 269 n.2 (Mo.
1985) (Welliver, J., dissenting).
186. See, e.g., N.J. STAT. ANN. § 2A:23-1 (West 2010); N.Y. CIV. RIGHTS LAW § 80-a (McKinney
2010); VT. STAT. ANN. tit. 15, § 1001 (2010).
187. See, e.g., CONN. GEN. STAT. ANN. §§ 52-572b, -572f (2010); D.C. CODE § 16-923 (2010).
188. See Brayman v. Deloach, 439 S.E.2d 709, 710–12 (Ga. Ct. App. 1993).
189. See State v. Jack, 596 So. 2d 323, 325–26 & n.1 (La. Ct. App. 1992). But see People v.
Washington, 130 Cal. Rptr. 96, 98–99 (Dist. Ct. App. 1976) (allowing it to be invoked in the case of an
unmarried same-sex couple).
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that Professors Andrew Koppelman and Sylvia Law have persuasively made
against laws banning same-sex marriages or laws criminalizing only same-
sex sodomy,190 and it applies with equal force when the law provides more
favorable treatment to same-sex couples than it does to opposite-sex
couples. Moreover, even setting their theory to one side, it is clear that the
cases refusing to classify same-sex conduct as adultery are based on gender-
discriminatory regimes, as they rely exclusively on arguments grounded in
the common law theory of adultery that punished only the wife‘s acts of
adultery while leaving those of the husband unpunished.
Second, to punish opposite-sex adultery while leaving same-sex adultery
unpunished is a form of sexual orientation discrimination, with
heterosexuals being the class that is discriminated against. Having struck
down laws banning same-sex marriage in decisions holding that
discrimination on the basis of sexual orientation is subject to heightened
scrutiny under state analogues to the Equal Protection Clause, 191 courts in
such states can hardly let the discrimination stand when it is directed in the
opposite direction.
Third, it is hardly clear what the ―pro-gay rights‖ position is in this
context. While one might be tempted to say that failing to punish the gay
offender is the pro-gay rights approach, one must not forget that the victim
in these situations is also gay. In other words, in the context of marriage,
every responsibility for one partner constitutes a corresponding right for the
other.
Fourth, to not punish same-sex adulterous behavior while
simultaneously punishing opposite-sex adulterous behavior is to demean the
value of same-sex relationships. Just as, in the words of Justice Anthony
Kennedy, it ―demeans the lives of homosexual persons‖ to have decisions
such as Bowers on the books that make private, consensual sex between
two people of the same sex a criminal act,192 and just as denying same-sex
couples the ability to marry devalues the lives of gay people,193 so too does
it demean the lives of gay people to fail to equally protect their formal, legal
relationships from the harms associated with adulterous conduct.
Furthermore, it demeans the value of same-sex relationships by
perpetuating antiquated, negative stereotypes about gay people by
associating the virtue of fidelity with heterosexuality by enforcing a
faithfulness norm against them while leaving same-sex relationships
190. See Andrew Koppelman, The Miscegenation Analogy: Sodomy Law as Sex Discrimination,
98 YALE L.J. 145, 149–51, 158–60 (1988); Andrew Koppelman, Why Discrimination Against
Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. REV. 197, 199–205 (1994); Sylvia A.
Law, Homosexuality and the Social Meaning of Gender, 1988 WIS. L. REV. 187, 230–31 (1988).
191. See, e.g., Kerrigan v. Comm‘r of Pub. Health, 957 A.2d 407, 481–82 (Conn. 2008);
Varnum v. Brien, 763 N.W.2d 862, 884–85, 906 (Iowa 2009).
192. See Lawrence v. Texas, 539 U.S. 558, 575 (2003).
193. See John G. Culhane, Uprooting the Arguments Against Same-Sex Marriage, 20 CARDOZO
L. REV. 1119, 1181 (1999).
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194. Case, supra note 22, at 141 (―Because of these negative externalities of adultery, the more
interesting question about its future is not whether it will be unconstitutional to criminalize it after
Lawrence (most likely not, since, as noted, it can cause harm to an institution the law protects), but
rather, will legislatures, eager to strengthen traditional marriage and perhaps still interested in
penalizing, condemning, or discouraging those engaged in homosexual conduct, now move to amend
their adultery statutes so as to include within its definition homosexual conduct by a married person,
either for purposes of the criminal law or related purposes, such as assessing fault in divorce or allowing
actions for alienation of affection.‖).
195. Witt v. Dep‘t of Air Force, 527 F.3d 806, 809–10 (9th Cir. 2008).
196. See Witt v. U.S. Dep‘t. of Air Force, No. 06-5195RBL, 2010 WL 3732189, at *4 (W.D.
Wash. Sept. 24, 2010).
2011] APPLYING THE LAW OF ADULTERY TO SAME-SEX COUPLES AND SAME-SEX CONDUCT 127