Section Review

Is adultery still a crime after Lawrence?

David M. Lieber is an Assistant Attorney General in the Appellate Division of the Massachusetts Attorney General's Office. This note represents the opinions and legal conclusions of its author, and not necessarily those of the Office of the Attorney General.
Recent news that the Virginia divorce bar was in turmoil over the criminal conviction of attorney John R. Bushey Jr. for adultery1 was probably greeted more with bemusement than concern by most Massachusetts lawyers, even those harboring guilty consciences. Before dismissing this as merely another difference between the conservative South and the liberal Northeast, Bushey's Massachusetts counterparts might do well to reflect that while he was convicted of a misdemeanor carrying a maximum fine of $250, unfaithful spouses in Massachusetts face - at least theoretically - up to three years in prison.

Despite a reputation for political liberalism, the commonwealth's Puritan heritage is still reflected, to an extent probably little appreciated even by most lawyers, in its criminal code. The list of "Crimes Against Chastity, Morality, Decency and Good Order" set forth in Massachusetts General Laws chapter 272 is comprehensive, and ranges from the grave (Section 3 prohibits drugging a person for sexual intercourse) to the obscure (Section 25 prohibits taverns from having curtained booths that hide customers from view). As standards of public morality have evolved, a number of these crimes have run afoul of various constitutional provisions - most famously in Eisenstadt v. Baird,2 where the U.S. Supreme Court invalidated Section 21's prohibition on the distribution of contraceptives to unmarried persons.

Debate over the continuing viability of morals crimes in general, and crimes involving sexual conduct particularly, has intensified in the wake of the U.S. Supreme Court's decision in Lawrence v. Texas,3 the reasoning of which - its dissenters claim - potentially invalidates state laws against "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity."4 Other than same-sex marriage, each of these is regulated by the criminal law in Massachusetts.5

Which of these laws survives Lawrence? The answer, veteran Supreme Court watchers know, is: Nobody can possibly predict. But asking the question, particularly with regard to the criminal prohibition of adultery, shows that the scope of Lawrence depends crucially on which of two potentially competing threads of the decision the Court chooses to emphasize. While Lawrence implies that criminal regulation of private sexual conduct is impermissible where the effect is to impair the freedom to form exclusive intimate relationships, is such regulation permissible where the effect is to promote such intimate relationships? In other words, can the state limit the sexual freedom of married persons in order to protect their marriages?

The crime of adultery in Massachusetts

Chapter 272, Section 14 provides that:

A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.

Although the Supreme Judicial Court has noted that the statute has "fallen into a very comprehensive desuetude,"6 it cannot be dismissed as a mere anachronism.

The most recent successful prosecution for adultery in Massachusetts is no more than 20 years old. In Commonwealth v. Stowell, the SJC reviewed the case of a married woman who was discovered in flagrante delicto in a parked van with a man admittedly not her husband.7 Both she and the man were convicted of adultery following a bench trial and paid fines of $50. Defendant appealed to a jury session of the District Court, which reported three questions regarding the constitutionality of the prosecution to the SJC. The court held that the adultery statute did not violate the federal constitutional guarantee of privacy, either facially or as applied, and that the statute "may be applied to consensual acts between adults in private."8
The Stowell court rejected defendant's contention that the guarantee of freedom "from unwarranted governmental intrusion into matters . . . fundamentally affecting a person," announced in Eisenstadt prohibited the punishment of private, consensual adultery.9 The court noted that, while the Supreme Court had never "definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating private consensual sexual behavior among adults," only those rights that are fundamental are protected by due process.10 Since even private, consensual adultery was not a fundamental right in the court's view, the statute was not incompatible with the privacy rights guaranteed by the federal Constitution.11 Shortly thereafter, the United States Supreme Court essentially agreed, holding that "the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable . . . ."12
Lawrence v. Texas

At first glance, Lawrence (which explicitly overrules Bowers) seems fatal to Stowell and to the criminal prohibition of adultery, at least to the extent that it is private and consensual. The Lawrence Court declines to address the challenge to a Texas homosexual sodomy law as an equal protection violation, instead framing the issue as a question of sexual privacy: "We conclude that this case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution."13 Deciding that the Due Process Clause does provide such protection, the Court confirms its focus on the private and consensual nature of the conduct Texas sought to prohibit:

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. . . . The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. 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.14
As this passage suggests, Lawrence could be read to hold that "The State cannot . . . mak[e] . . . private sexual conduct a crime." But the Court has left itself more room for maneuver than this categorical language implies. As the dissent points out at some length, the Court does not explicitly hold that the freedom to engage in private sexual activity is a fundamental right.15 Instead, the Court unambiguously overrules only that portion of Bowers holding the prohibition of homosexual sodomy is rationally related to a legitimate state interest: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."16

Thus, while the Court rests its holding on Due Process rather than Equal Protection grounds, its analysis is clearly informed by a judgment that there is no legitimate governmental interest in prohibiting homosexual persons from forming the kind of intimate relationships heterosexuals are permitted: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."17 The Lawrence Court, perhaps crucially, sees the right to engage in private sexual behavior in this context as supporting, indeed being fundamentally inseparable from, the right to form lasting intimate relationships.

Adultery, as the Stowell court recognized, presents the opposite situation. In what is surely one of its least controversial holdings, the SJC took judicial notice that "the act of adultery frequently has a destructive impact on the marital relationship . . . ."18 To say that threats to marriage are a particular concern of the Supreme Court's fundamental rights jurisprudence understates the matter substantially - marriage is practically the Court's Platonic ideal of what an intimate relationship is. The seminal case in constitutional privacy law, Griswold v. Connecticut,19 is grounded in the "sacred precincts of the marital bedroom," and (in perhaps the highest imaginable praise from the Warren Court) implies that marriage might be more important than the Bill of Rights: "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." In Loving v. Virginia,20 the Court credited marriage as "fundamental to our very existence and survival."

Because the Supreme Court treats marriage as a relationship of nearly unassailable significance, it is difficult to see how the Court could disagree with Stowell's conclusion that "the State has a legitimate interest in prohibiting conduct which may threaten that institution."21 No other criminal prohibition on sexual behavior is more explicitly designed to protect marital relationships than the prohibition of adultery. Indeed, the Supreme Court has described adultery as "an offense against the marriage relation . . . ."22 Thus, if the Court applies traditional rational basis review to these cases, it would seem that the criminal prohibition of adultery would survive.

But this kind of deferential review is difficult to square with the implication of Lawrence that criminalizing citizens' private sexual conduct can sometimes amount to "demean[ing] their existence or control[ling] their destiny . . . ." More likely, the Court would have to find some way to balance the right to sexual freedom against the right to form lasting intimate relations through marriage. This is not a task to which the Court's current privacy jurisprudence is well suited. If the liberty to control one's sexual destiny also has the effect of disturbing the "sacred precincts of the marital bedroom," the Court's current precedents simply offer no clue as to how this conflict can be resolved.

While the validity of Massachusetts' criminal prohibition against adultery may be more likely to vex Con. Law students than SJC justices for the foreseeable future, it is apparent that the question deserves serious thought, if only because it concretely presents a dilemma that lies at the center of the Supreme Court's constitutional privacy doctrine. And of course, as Mr. Bushey of Virginia now appreciates, you never know when a seemingly theoretical problem can turn out to be surprisingly real.

End notes
1. See John F. Kelly, Va. Adultery Case Roils Divorce Industry; Conviction Draws Attention to Little-Used Law, Wash. Post, Dec. 1, 2003, at B1.[back]

2. 405 U.S. 438 (1972).[back]

3. 123 S. Ct. 2472 (2003).[back]

4. Id. at 2489 (Scalia, J., dissenting). [back]

5. Chapter 272 criminalizes polygamy (section 15), incest (Section 17), various conduct related to prostitution (Sections 2, 4A, 4B, 6, 7, 8, 12, 13, 24, 53A), distribution of articles intended to be used for masturbation (Section 21), adultery (Section 14), fornication (Section 18), bestiality (Section 34), and obscenity (Section 29).[back]

6. Commonwealth v. Stowell, 389 Mass. 171, 176 (1983).[back]

7. Stowell, 389 Mass. at 172. [back]

8. Id. at 176.[back]

9. Id. at 173. [back]

10. Id. at 174. [back]

11. Id. at 175. [back]

12. Bowers v. Hardwick, 478 U.S. 186, 191 (1986).[back]

13. Lawrence, 123 S. Ct. at 2476. [back]

14. Id. at 2484.[back]

15. Id. at 2488-95 (Scalia, J., dissenting). [back]

16. Id. at 2484.[back]

17. Id. at 2478.[back]

18. Stowell, 389 Mass. at 175.[back]

19. 381 U.S. 479, 486 (1965).[back]

20. 388 U.S. 1, 11 (1967).[back]

21. Stowell, 389 Mass. at 175. [back]

22. S. Sur. Co. v. Oklahoma, 241 U.S. 582, 586 (1916).[back]

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