CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, August 10, 2010

Nicolas on Adultery Laws and Same-Sex Couples

Nicholas peter Peter Nicolas  (University of Washington School of Law) has posted The Lavender Letter: Applying the Law of Adultery to Same-Sex Couples and Same-Sex Conduct on SSRN. Here is the abstract:

In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been limited – since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship – with the growth in the number of states legalizing same-sex marriage, the question is certain to recur with increased frequency.

In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising a provocation defense based on a spouse’s act of adultery. I demonstrate that those decisions holding that same-sex conduct does not constitute adultery do so on the basis of outdated precedents that rely on a gendered concept of adultery that treats sexual dalliances by men and women differently, as well as on heteronormative statutory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. Next, I show that the policy arguments in favor of maintaining any of these bases for criminal and civil liability apply with equal force to same-sex couples and same-sex conduct. Finally, I conclude that 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, and indeed that a failure to apply them in those contexts devalues same-sex relationships and perpetuates antiquated, negative stereotypes about gay people.

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