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Adultery Laws: 19th Cheat Code for the 21st Century?
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A lot of crimes could send you to prison for five years - burglary, tax evasion, and under a still-existing Oklahoma law: adultery. [1] This may sound like something from a time where pictures of exposed ankles counted as “sexting” but adultery laws are still on the books today. Are they constitutional? It’s . . . unknown.
If we knew they were unconstitutional, this article would be nothing more than a curiosity. But after Dobbs v. Jackson Women’s Health Organization,[2] there’s a reasonable possibility that adultery laws remain constitutional.
This article begins by looking at the history of adultery laws. Next, it examines the most relevant case law to evaluate whether adultery laws could be enforceable today. Finally, it looks at how these laws could work in action if enforced in the present day.
A Short History of American Adultery Law
From the Colonies to Revolution
Although human societies have long had some sort of punishment for adultery in one way or another, the Puritans of New England form the textbook example in American history. For them, adultery was punishable by execution - alongside other crimes such as blasphemy, sodomy, murder, and witchcraft.[3] To them, regulation of moral behavior was necessary since it would decide if God would bestow prosperity on the community.[4]
But there were noticeable gender-based differences in application of the law. Under the 1648 Massachusetts Code, “[i]ntercourse between a married man and a single woman was defined as mere fornication, whereas intercourse between a married woman and a man (single or married) was deemed the much more serious offense of adultery.”[5]
Even though prescribed punishment was severe, the actual punishment for adultery declined sharply over time. By the late seventeenth century, Puritans recognized that “the punishment proved too severe for the crime and the crime too common for the punishment.”[6] Consensual sex, even if technically illegal, rarely received punishment in New England by the time of the American Revolution.[7]
Criminal prosecution of consensual sexual activity was also rare outside of colonial New England and, later, the newly independent United States. Occasional adultery prosecutions occurred in Maryland and Virginia in the early eighteenth century, but by the latter part of the century laws against consensual sex were rarely enforced even when widely flouted such as in “sexually open” Philadelphia.[8]
Continuation and Decline
Historically astute readers may have recognized that the previously mentioned Oklahoma adultery law could hardly be considered a remnant of the colonial era. But the reasons mentioned below show why states admitted to the union well after 1776 still adopted adultery laws.
Adultery laws were still commonplace in existing state laws - even when unenforced. New states and territories often looked to existing states for inspiration leading to many existing laws making their way west.[9]
Nor was moralization of American politics finished. The Enlightenment attitude of the Revolutionary Era gave way to the rising moralist sentiment of the Second Great Awakening. In addition to reviving the occasional blasphemy prosecution,[10] the era saw more restrictive attitudes toward sex (including prosecutions for erotic literature and literature promoting birth control).[11] In this environment, it is easy to see how adultery laws could still be enacted.
Sex and Litigation: The Relevant Case Law
The Supreme Court
The Supreme Court has never directly ruled on the constitutionality of adultery laws, so a legal analysis of the issue must rely on other cases that involved topics of sex and privacy.
An individual’s right to privacy was recognized in Griswold v. Connecticut, where the Supreme Court held a Connecticut law restricting access to contraceptives was unconstitutional.[12] Justice William O. Douglas was tasked with writing the opinion (having dissented in a similar case a few years prior)[13] but also possibly due to his “checkered marital history and extramarital dalliances.”[14] Douglas created his penumbras theory drawing on the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments leading to the conclusion that “various guarantees create zones of privacy.”[15] Although Griswold addressed a case of a married couple, the principles of Griswold were extended to unmarried couples on Equal Protection grounds less than a decade later in Eisenstadt v. Baird.[16]
But the path to protecting privacy for consensual sexual activities would not be smooth. In 1986, the Court upheld a Georgia anti-sodomy law in its 5-4 Bowers v. Hardwick decision.[17] In 2003, the Court overturned Bowers when it struck down a Texas anti-sodomy law in Lawrence v. Texas in a 6-3 decision.[18] Justice Anthony Kennedy’s majority opinion took particular note of the historical tradition of anti-sodomy laws and concludes that such laws were directed against “nonprocreative sexual activity more generally” and not based on differences between homosexual and heterosexual conduct.[19] This was further supported by nineteenth century tradition showing sodomy prosecutions were infrequent, possibly due to evidence rules.[20]
Kennedy also rejected the ability to “use the power of the State to enforce these views on the whole society through operation of the criminal law.”[21] There, Kennedy looked to a variety of sources, including the ALI Model Penal Code, previous legislation from British Parliament, and a case from the European Court of Human Rights.[22] He also pointed to a lack of enforcement as an additional reason to do away with such laws. .[23]
In contrast, Justice Antonin Scalia’s dissent showed a sharp disagreement with the majority on legislation and moral values. In overturning Bowers, Scalia wrote the Court was threatening “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”[24] A similar pattern of disagreement would emerge between Kennedy and Scalia in the same-sex marriage case Obergefell v. Hodges.[25]
Other Courts
Unsurprisingly, adultery litigation is rare so there is sparse case law from other courts. The Ninth Circuit weighed in on the issue in Perez v. City of Roseville where a police officer filed a section 1983 suit on the grounds of being terminated for an extramarital affair.[26] The opinion noted that “Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has ‘traditionally viewed a particular practice,’ such as extramarital sex, ‘as immoral.’”[27] However, the opinion was withdrawn and superseded the following year as the court examined the case on qualified immunity grounds.[28]
State courts have occasionally weighed the constitutionality of adultery laws with mixed results. In 1983, the Supreme Judicial Court of Massachusetts upheld an adultery conviction holding that it did not violate the fundamental right to privacy under the US Constitution.[29] And in 1996, The Texas Supreme Court rejected the contention that the US Constitution protected adultery in a case where a police officer was denied a promotion for having a sexual affair with another officer’s wife.[30]
In 2002, the Sixth Circuit addressed the issue in a case where a deputy sheriff was fired for an adulterous affair.[31] The court rejected the deputy sheriff’s constitutional challenge.
Notably, all of these cases (except Perez) were before Lawrence and Scalia’s dissent even pointed to the uncertain future of such cases.[32] Adultery litigation has been practically non-existent since Lawrence was decided in 2003, although the small sample size makes it unclear if Lawrence was the cause.
Return of the Supreme Court
In 2022, the Supreme Court threw a new factor into the adultery law analysis. With Dobbs v. Jackson Women’s Health Organization,[33] the Court shook up the field of sexual rights and privacy. There, the Court overturned Roe v. Wade[34] and its protection of abortion rights. The decision has relevance to adultery laws for two main reasons: (1) the Court’s reliance on historical tradition, and (2) the Court’s willingness to overturn precedent.
The Court looked at whether a right is “‘deeply rooted in this Nation's history and tradition’ and ‘implicit in the concept of ordered liberty’” for purposes of the Due Process Clause analysis.[35] There, it looked to how such rights were historically regulated.
The willingness to overrule precedent is also striking. In overruling such long standing cases as Roe v. Wade and Planned Parenthood v. Casey, the Court has demonstrated a willingness to overrule repeatedly reaffirmed cases from thirty years ago and more. Thus, the potential for the Court to severely limit or even overrule Lawrence is within reach.
Dobbs and Adultery Laws
Dobbs did not address adultery laws directly; however for the previously mentioned reasons, it does factor into the analysis. One approach would be to look to the history and tradition that the Court pointed to in Dobbs meaning one would need to conduct a historical analysis of adultery laws. Here, history can have multiple interpretations. Proponents of adultery laws could point out that they predate the founding and remained on the books in many states. Opponents could point to how the laws were rarely enforced and the framing of the Constitution took place in the more relaxed sexual attitudes of the Enlightenment.
But when history is messy or disputable, ideology may fill the gaps. Thus, it is possible that courts will look at the history through their preferred ideological lens, intentionally or not, and reach a conclusion that suits their point of view. If this is the path taken, uncertainty will reign in the field of adultery laws.
How Could They Function Today?
If courts were to uphold adultery laws, how could they function in the twenty-first century? In most areas, it is unlikely that things would significantly change. Enforcement of adultery laws is rare and public polling shows between ⅔ and ¾ of the population is against criminalizing adultery.[36] This comes despite the fact that roughly 90 percent of people morally disapprove of adultery.[37]
Even before Lawrence, adultery prosecutions were rare. There was the previously mentioned case of a Massachusetts defendant being convicted in 1983; in 1990, a Wisconsin woman was charged with adultery when it arose in the context of a divorce.[38] She ultimately entered into a deferred prosecution agreement and community service.[39]
Despite its rarity, the adultery issue has resurfaced post-Lawrence. In 2004, a Virginia woman went to the police after an affair with a lawyer ended badly.[40] The assistant commonwealth attorney noted: “We’re not out beating bushes and certainly we’re not peeking in windows. However, in this case, it was thrown in our face.”[41] Although the defendant was himself a lawyer, he declined to challenge the law and instead pled guilty, did twenty hours of community service, and lost his job.[42]
Potential Concerns
Given how adultery laws were used in the pre-Lawrence era, it seems unlikely that the sex police are going to be doing door-to-door raids. As with the challenge faced by the Puritans, the punishment is too severe and there are too many people doing it.[43]
But the possibility of selective prosecution remains. With so many people violating a law that can carry substantial penalties, politicians and prosecutors could target their political opponents and groups that do not conform to traditional sexual values.
In the case of political opponents, the strategy is fairly obvious. Find one of the many politicians having an affair, prosecute, and lock them up. Sometimes politicians will even publicly admit the affair believing they broke no laws as was the case with former New York governor David Paterson who admitted the affairs and claimed he “broke no laws.”[44] Like millions of other adulterers, Paterson got away with a criminal act - in this case a misdemeanor.[45]
The potential to prosecute those who do not conform to traditional sexual values could also receive new force given increased political polarization on culture issues. LBGTQ+ individuals could be targets as certain politicians seek to find constitutional ways to target this community. People who voluntarily engage in non-monogamous relationships could also be targeted by adultery laws - a fairly large group according to a 2023 poll finding 34 percent of Americans described their ideal relationship status as something other than complete monogamy.[46]
The Push for Repeal
In recent years, several states have made efforts - some successfully - to repeal their adultery laws.[47] Among the states having decriminalized adultery since 2010 are West Virginia, Colorado, New Hampshire, Massachusetts, Utah, and Idaho.[48] Although pushing for repeal of adultery laws always risks a politician getting accused of immorality, the success of these repeals in states ranging from liberal Massachusetts to conservative West Virginia, Utah, and Idaho demonstrates a broader political consensus that these laws are archaic in modern America.
Conclusion
Would the Court uphold adultery laws in a present-day case? It’s unclear, but doing so could have significant implications. The ball is in the courts’ court now - all we need is someone to violate the law and get prosecuted. And if they’re a lawyer they can tell their spouse something like: “Honey, I was only trying to create a test case for constitutional jurisprudence.”
[1] 21 OK Stat § 21-872 (2021) (“Any person guilty of the crime of adultery shall be guilty of a felony and punished by imprisonment in the State Penitentiary not exceeding five (5) years or by a fine not exceeding Five Hundred Dollars ($500.00), or by both such fine and imprisonment.”)
[2] 142 S. Ct. 2228 (2022).
[3] Geoffrey R. Stone, Sex and the Constitution 74 (2017).
[4] Id. at 76.
[5] Id. at 77.
[6] Id. at 79-80.
[7] Id. at 81.
[8] Id. at 83-85.
[9] See generally Lawrence M. Friedman, A History of American Law (4th ed. 2019).
[10] Stone, supra note 3 at 141.
[11] Id. at 146-47. For Massachusetts physician Charles Knowlton, the sentence for counseling birth control was hard labor. Id.
[12] 381 U.S. 479 (1965).
[13] Poe v. Ullman, 367 U.S. 497 (1961).
[14] Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas 384 (2003).
[15] Griswold, 381 U.S. at 484.
[16] 406 U.S. 438 (1972).
[17] 478 U.S. 186 (1986).
[18] 539 U.S. 558 (2003).
[19] Id. at 568-69.
[20] Id. at 569-70.
[21] Id. at 571-74.
[22] Id.
[23] Id. at 573.
[24] Id. at 590 (Scalia, J., dissenting).
[25] 576 U.S. 644 (2015).
[26] 882 F.3d 843 (9th Cir. 2018) withdrawn and superseded by Perez v. City of Roseville 926 F.3d 511 (9th Cir. 2019).
[27] Id. quoting Lawrence, 539 U.S. at 577-78.
[28] Perez, 926 F.3d 511.
[29] Commonwealth v. Stowell, 389 Mass. 171 (1983).
[30] City of Sherman v. Henry, 928 S.W.2d 464 (Tex. 1996).
[31] Marcum v. McWhorter, 308 F.3d 635 (6th Cir. 2002).
[32] Lawrence, 539 U.S. at 590 (Scalia, J., dissenting).
[33] 142 S. Ct. 2228 (2022).
[34] 410 U.S. 113 (1973).
[35] Dobbs, 142 S. Ct. at 2242.
[36] Deborah L. Rhode, Stop F-ing Around, Dump Adultery Laws, The Daily Beast (Apr. 13, 2017, 4:31 PM) https://www.thedailybeast.com/stop-f-ing-around-dump-adultery-laws.
[37] Megan Brenan, Americans Say Birth Control, Divorce Most “Morally Acceptable,” Gallup (June 9, 2022) https://news.gallup.com/poll/393515/americans-say-birth-control-divorce-morally-acceptable.aspx. There is a gap between liberals and conservatives but it is only 10 points - one of the smaller gaps on the issues polled.
[38] William E. Schmidt, Adultery As A Crime: Old Laws Dusted Off In A Wisconsin Case, The New York Times (Apr. 30, 1990) https://www.nytimes.com/1990/04/30/us/adultery-as-a-crime-old-laws-dusted-off-in-a-wisconsin-case.html.
[39] AP, Adultery Count Might Be Dropped By Agreement in Wisconsin Case, The New York Times (May 8, 1990) https://www.nytimes.com/1990/05/08/us/adultery-count-might-be-dropped-by-agreement-in-wisconsin-case.html.
[40] Deborah L. Rhode, Your Affair Might Be Illegal: Inside the Complicated World – and 21 States – Where Adultery Remains Against the Law, Salon (Apr. 2, 2016 2:45 PM) https://www.salon.com/2016/04/02/your_affair_might_be_illegal_inside_the_complicated_world_and_21_states_where_adultery_remains_against_the_law/.
[41] Id.
[42] Id.
[43] Stone, supra note 3 at 79-80.
[44] Erik German, N.Y. Governor Admits Affairs, Los Angeles Times (Mar. 19, 2008 7:00 AM) https://www.latimes.com/archives/la-xpm-2008-mar-19-na-nygov19-story.html.
[45] NY Penal L § 255.17 (2019).
[46] Linley Sanders, How Many Americans Prefer Non-Monogamy In Relationships?, YouGov (Feb. 21, 2023 11:08 AM) https://today.yougov.com/topics/society/articles-reports/2023/02/21/how-many-americans-prefer-nonmonogamy-relationship.
[47] Joanne Sweeny, Adultery and fornication: Why are states rushing to get these outdated laws off the books?, Salon (May 6, 2019 6:00 AM) https://www.salon.com/2019/05/06/adultery-and-fornication-why-are-states-rushing-to-get-these-outdated-laws-off-the-books/.
[48] http://www.wvlegislature.gov/bill_status/bills_history.cfm?year=2010&sessiontype=RS&input=457, The Associated Press, Bill to Repeal of Colorado Adultery Law Signed, The Denver Post (Mar. 22, 2013 9:23 AM) https://www.denverpost.com/201..., Jolie Lee, New Hampshire Senate Votes to Repeal Anti-Adultery Law, USA Today (Apr. 17, 2014 4:39 AM), Massachusetts Law About Sex, Mass.Gov (last visited Mar. 12, 2023) https://www.mass.gov/info-deta..., Ben Winslow, Adultery and Sodomy Among Consenting Adults Are No Longer Illegal In Utah, FOX 13 (Mar. 25, 2019 9:35 PM) https://www.fox13now.com/2019/..., https://legiscan.com/ID/bill/S1325/2022