Definition of adultery debated in state court: Same-sex affair cited in divorce case
One of the problems with our legal system is that it often doesn't do a very good job of keeping up with changing societal and sexual norms. This case is a perfect example, and I have to say that they New Hampshire Supreme Court got it dead wrong.
CONCORD, N.H. -- If a married woman has sex with another woman, is that adultery? The New Hampshire Supreme Court, ruling in a divorce case, says no.
The court was asked to review a case in which a husband accused his wife of adultery after she had a sexual relationship with another woman. Robin Mayer of Brownsville, Vt., was named in the divorce proceedings of David and Sian Blanchflower of Hanover.
A Family Court judge decided Mayer and Sian Blanchflower's relationship did constitute adultery, but Mayer appealed to the Supreme Court, arguing that gay sex is not adultery under New Hampshire divorce law.
Three of the five justices agreed. Two others -- generally considered the court's more conservative members -- did not.
Part of the problem in New Hampshire is that adultery is not defined in the state's divorce laws. So the court looked up "adultery" in Webster's dictionary and found that it mentions intercourse. And it found an 1878 case that referred to adultery as "intercourse from which spurious issue may arise."
Other states, including Georgia, Florida and South Carolina, have defined adultery in broader terms -- beyond intercourse -- to include gay sex.
"I think the majority opinion is unintentionally trivializing same-sex relations and violating modern notions of the sanctity of marriage," said Marcus Hurn, a professor at Franklin Pierce Law Center.
A sexual relationship, whether heterosexual or homosexual, is "exactly an equivalent betrayal and that, I think, is the ordinary meaning most people would give."
But the majority did not want the New Hampshire courts to step onto the slippery slope of defining which sex acts outside of intercourse might amount to adultery.
"This standard would permit a hundred different judges ... to decide just what individual acts are so sexually intimate as to meet the definition," the court said.
The dissenters said adultery should be defined more broadly to include other intimate extramarital sexual activity.
A relationship is adulterous "because it occurs outside of marriage and involves intimate sexual activity, not because it involves only one particular sex act," said Chief Justice David Brock and Justice John Broderick.
I've always believed that extramaritals affairs are not defined by a particular sexual act or set of acts. The sexual acts may be an outcome of an attraction and intimacy that develops between couples, but in most cases the adultery is already present before any sexual activity takes place.
Using Webster's dictionary and an 1878 precedent seems a horribly lazy and short-sighted interpretation of adultery, given that homosexuality did not have the wide-spread social acceptance 125 years ago that it enjoys today.
The fact that Mrs. Blanchflower would have been guilty of adultery if she had engaged in an extramarital sexual affair with a man is a gross miscarriage of justice. What the judges have failed to recognize is that the definition of adultery should not depend on whether or not one of the parties is in possession of a penis. It's a pretty simple proposition, really; adultery is any sort of emotional and/or sexual intimacy outside of marriage that one would not willingly and openly make their spouse aware of. Period.
