INTRODUCTION :: In the political and legal debate over same-sex marriage, references to the rights (or benefits or privileges) and responsibilities (or burdens or obligations) associated with marriage constitute a key weapon in the rhetorical battle. Most of the focus, however, has been on the “rights” side, particularly the 1,138 federal and countless additional state rights associated with marriage. A pair of recent newspaper headlines, however, got me thinking about the responsibilities side of the ledger, specifically, that of fidelity to one’s spouse.
The first headline was about a bill introduced in New Hampshire to repeal its 200-year-old law defining adultery as a criminal offense. The second was about a forthcoming study finding that a non-trivial percentage of individuals in same-sex relationships have sex outside of those relationships. These two headlines, coupled with the knowledge that New Hampshire had recently become one of a handful of states in which same-sex marriage was recognized, raised the following question in my mind: to what extent do laws that provide criminal penalties or civil damages for adultery or other torts related to marriage (or that otherwise make acts of adultery a relevant consideration, such as fault-based divorce) apply to same-sex couples who enter into a marriage or its functional equivalent, such as a civil union or a domestic partnership?
As I began to explore the issue, starting with case law in New Hampshire, I came across a recent case from the New Hampshire Supreme Court in which the court held that a husband-whose wife had sexual relations with another woman-was unable to obtain a fault-based divorce from his wife on the ground of adultery. The court-relying in part on cases interpreting the state’s criminal adultery statute and in part relying on a dictionary-held that the term adultery refers to coital sexual intercourse, which requires the insertion of a penis into a vagina, between a married person and someone other than his or her spouse. Since that definition necessarily requires the involvement of a man and a woman, the court concluded that same-sex sexual conduct could never constitute “adultery” as that term is used in either the divorce laws or the criminal adultery statute. Indeed, so narrow was the court’s definition of adultery that non-coital sexual conduct between two people of the opposite sex, such as oral sex, likewise did not count as adultery (a holding that no doubt clashes with what most married people would view as adultery).
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. In contrast, decisions from numerous other jurisdictions point in the opposite direction, holding that same-sex extramarital sexual relations constitute adultery.
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.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital