POST LAWRENCE ADULTERY ISSUES IN DIVORCE
By: Brian D. West, Esq.
The United States Supreme Court’s 2003 landmark decision in Lawrence v. Texas launched a windstorm of debate about the breadth of the rights of individuals to conduct their personal private lives, with regard to sexual activity, without State involvement or censure. Much of the debate has centered upon a perceived acknowledgment and advancement of gay rights in America. However, as some scholars have noted, the rationale of the case may reach further than gay rights, permeating the boundaries of the Domestic Relations field. See, e.g., Major Steve Cullen, Prosecuting Indecent Conduct in the Military: Honey, Should We Get a Legal Review First? 179 Mil. L. Rev. 128, 158 (2004). An analysis of Lawrence from this standpoint indicates that the Court may strike down laws proscribing adult, consensual, noncommercial, private sexual activity as “unconstitutionally violating the individual's protected zone of privacy” See id. at 158. Under this view, the ramifications of Lawrence raise significant questions regarding the continuing validity of adultery laws. These questions will likely have a tremendous impact on an individual’s right against self-incrimination under the Fifth Amendment and the defense and prosecution of adultery claims made in divorce cases in Virginia.
In Lawrence, the United States Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186 (1986) and struck down a Texas statute banning homosexual sodomy under the 14th Amendment’s Due Process protection of personal liberty. Lawrence, 539 U.S. at 577-78. The majority opinion in Lawrence clearly states that decisions adults make regarding their private, consensual sexual practices are a form of liberty which is protected by the Due Process Clause of the Fourteenth Amendment. Lawrence, 539 U.S. at 577-78. However, the court goes on to distinguish the circumstances in Lawrence, involving the sexual practice of two consenting adults, from circumstances involving minors, the coerced, prostitution, and recognition of same sex marriage. Id. at 578. These limitations on its holding suggest that Lawrence allows the states the power to regulate these behaviors and in so doing a state does not violate an individual’s liberty interest by proscribing such conduct.
Justice O’Connor and Justice Scalia differed in their assessment of the impact the Lawrence decision would have on seemingly related statutes that regulate the personal life of an individual. O’Connor concurred and invalidated the Texas statute (based on Equal Protection grounds rather than Due Process), but held that other laws which differentiate between heterosexuals and homosexuals based upon legitimate state interests, such as “preserving the traditional institution of marriage”, would withstand a rational basis review and not violate the Equal Protection Clause. Alternatively, Justice Scalia’s dissent asserts that the majority’s rationale that “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” compels the conclusion that promotion of morality is not a legitimate state interest. According to Justice Scalia, the majority’s rejection of a state’s ability to regulate based on the notions of morality undermines a vast array of state laws and their ability to pass the rational basis review promoted by the majority, such as regulation against same-sex marriage, incest, prostitution, fornication and adultery. Id.
The wake of the Lawrence decision causes waves of criminal statutes to crash on the shores of questionable constitutionality. If commission of those crimes is no longer viable, the basis to assert one’s Fifth Amendment right against self-incrimination no longer exists. Consistent with Justice Scalia’s prediction, the Virginia Supreme Court recently addressed the constitutionality of Virginia’s statute criminalizing fornication (Va. Code Ann. 18.2-344). In Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005), the plaintiff and defendant were an unmarried couple who were engaged in a sexual relationship. Id. at 368. The plaintiff brought a tort action for injuries allegedly inflicted by the transmission of herpes during sexual intercourse against the defendant. Id. Relying on Zysk v. Zysk 387 S.E.2d 466 (Va. 1990), the trial court found that the plaintiff had not stated a claim upon which judgment could be granted because the resulting injury was caused by the plaintiff’s participation in the illegal act of fornication. Martin, 607 S.E.2d at 368.
Relying on the rationale of Lawrence, the Virginia Supreme Court overruled the trial court, finding no fundamental difference between Va. Code Ann. § 18.2-344 outlawing fornication and the Texas statute invalidated in Lawrence. Id. at 370. Effectively decriminalizing fornication, the Court ruled that § 18.2-344 was unconstitutional by invading the liberty interests of adults concerning their sexual relations. Id. Significantly, the Court held that under Lawrence, “decisions by married or unmarried persons regarding their physical relationship are elements of their personal relationships that are entitled to due process protection.” Id. If the Court meant what it said then the State might well NOT have the ability to proscribe as criminal the act of adultery as it is the product of a physical relationship between a married person and one with whom that person is not married.
While the Court’s holding in Martin applied to private consensual conduct between adults, the Court was careful to note that the holding did not affect a state’s power to regulate prostitution, situations involving minors, or public fornication, In fact, the Court has specifically held that Lawrence does not apply to public activity. In Singson v. Commonwealth of Virginia, the defendant was arrested and prosecuted under Va. Code Ann. § 18.2-361 (crimes against nature) and 18.2-29 when he proposed to perform an act of sodomy in a men’s public restroom. 2005 Va. App. LEXIS 452, 3. The defendant argued that under Lawrence, 18.2-361 is unconstitutional because it prohibits consensual acts of sodomy. Id. at 2. The court rejected the defendant’s claim and held that application of the sodomy statute to conduct in a public location does not implicate the defendant’s constitutionally protected right to engage in private, consensual acts of sodomy. Id. at 16. The court declined to rule whether the crimes against nature statute was unconstitutional as it applied to private acts, holding that the defendant had no standing to challenge on this issue when his act occurred in a public place. (“as a general rule, if there is no constitutional defect in the application of the statute to the litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.”) Id. at 8-9.
Courts in Virginia have clearly drawn the line of constitutional protection to include private fornication and sodomy as distinguished from public sexual conduct. However, given the language used to justify these decisions, adultery statutes reside in a metaphorical no man’s land of constitutional protection. Martin establishes that due process protects elements of personal relationships that include decisions by married or unmarried persons regarding their intimate physical relationships, but never expressly holds that the decision of a married person to engage in an intimate physical relationship outside the marriage falls within this definition of constitutional protection. Interestingly in Martin, the Court did not carve out or mention as an exception to this rule a State’s right to regulate behavior in aid of “preserving the traditional institution of marriage” as was suggested by Justice O’Connor’s concurrence as being constitutional. The Court’s express exceptions are only those situations that “involve minors, non-consensual activity, prostitution, or public activity.” Martin, 269 Va. at 43. Similarly in Lawrence, the Supreme Court expressly held that “individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the Due Process Clause of the Fourteenth Amendment.” Lawrence, 539 U.S. at 578 (citing Justice Steven’s dissent in Bowers v. Hardwick, 478 U.S.186, 216 (1986). The Supreme Court went on to explicitly list circumstances that these decisions do not involve (minors, prostitution, public activity, or formal recognition by the government of a homosexual relationship). The exclusion of adultery from these lists further suggests that even adulterous decisions concerning intimate personal relationships are protected by the Constitution.
While the decision to engage in an adulterous relationship is unarguably an individual decision concerning a private, consensual, and intimate relationship, adultery possesses several aspects not retained by those statutes already invalidated. For example, by definition, adultery negatively affects the institution of marriage. An individual’s decision to commit adultery involves a third person, the spouse of the adulterer, who, most likely, does not consent to the individual’s decision regarding this personal relationship. Furthermore, this negative impact on marriage and family raises adultery to greater level of perceived immorality. Again, this new level results from the negative impact of the adulterous relationship on parties that do not contribute to the decision, such as a spouse and offspring.
However, while protecting the institution of marriage is inarguably a state interest, Martin asserts that Lawrence’s holding “sweeps within it all manner of state’s interests and finds them insufficient when measured against the intrusion upon a person’s liberty interest…in the form of private, consensual sexual conduct between adults.” Moreover, Courts have continually held that the fact that a majority has traditionally held something as immoral is not sufficient to uphold a law prohibiting the practice. Lawrence 539 U.S. at 578; Martin, 269 at 41; State v. Limon, 280 Kan. 275, 294 (2005). If the grounds of morality crumble under the weight of an individual’s right to engage in a private homosexual act, courts will unlikely be able to uphold adultery statutes on such grounds.
While indirect case authority in Lawrence and Martin lack a concrete standard for constitutional protection of adulterous relationships, direct, pre Lawrence case authority is equally inconclusive. Marcum v. McWhorter, decided by the Sixth Circuit in September of 2002, involved a wrongful termination action by a sheriff who was fired because of his cohabitation with a married woman. 308 F.3d 635, 637. (2002). The Sheriff maintained that his exclusive, sexually intimate relationship with the married woman was protected by the Constitution. Id. at 638. The court rejected this claim, holding that “the adulterous nature of the relationship does not portray a relationship of the most intimate variety afforded protection under the Constitution.” Id. at 640.
While Marcum seems directly on point, the court relied heavily on the Bowers decision in concluding that an adulterous relationship does not warrant due process protection. See Id. at 641 (“The fact that the court was addressing another fundamental liberty interest…does not prevent this court from relying on Bowers…when determining whether an adulterous relationship between two consenting adults in constitutionally protected as a fundamental element of personal liberty…”). The court in Marcum goes on to compare the adultery issue to the sodomy issue in Bowers, finding the situations factually analogous in that both evaluate a consensual sexual relationship between two adults. Id. Finally, the court relies on the comparable “ancient roots” of the proscriptions against both sodomy and adultery. Id. at 642.
Since Lawrence was decided in 2003, explicitly overruling Bowers, some courts have considered where Marcum’s adultery holding stands. However, no court has reached a concrete conclusion that effectively characterizes the position of adultery statutes in constitutionally protected relationships. In Beecham v. Henderson County, an attorney practicing in Henderson County Courthouse, married to a court clerk, entered into a romantic relationship with the Plaintiff, another court clerk who worked on the same floor as his wife. 422 F.3d 372, 373-374 (2005). When the Clerk’s office fired the Plaintiff because of the office tension caused by her relationship with the attorney, Plaintiff brought an action for wrongful termination based on her constitutional right to engage in such private intimate relationships. Id. 373. The court declined to determine whether Marcum was overruled by Lawrence, and assumed that adulterous relationships were constitutionally protected for the purpose of the court’s rational basis review. Id. at 378. The court ultimately found that even if the adulterous relationship between the Plaintiff and the attorney was constitutionally protected, termination of her employment survived a rational basis analysis because it did not “substantially interfere with the right of such an association.” Id. at 376-377.
Cawood v. Haggard, the Plaintiff, a divorce attorney, was indicted for promoting and patronizing prostitution when he offered his client reprieves on her legal bill in return for sexual favors. 327 F.Supp. 2d 863, 865 (2004). The Plaintiff brought this action against the Sheriff’s department, alleging that they violated his constitutional due process right to privacy when, unbeknownst to the Plaintiff, the department recorded the sexual act between the Plaintiff and his client. Id. The court held that through the client’s complaint of possible criminal activity, she invited the state’s intrusion on the alleged private relationship. Id. at 879. The court further found that this invitation, along with the adulterous and short-lived nature of the relationship, placed the relationship outside the realm of Constitutional protection. Id. However, the court based its conclusion on the unusual facts of the case and specifically declined to “resolve the debate as to the scope or intent of the Supreme Court’s opinion in Lawrence.” Id. at 878.
Though the waters seem murky, the power of a state to regulate adultery after Lawrence is important to the practice of domestic relations law in several aspects. When divorce proceedings address the issue of adultery, either to establish grounds for divorce or assert a bar to spousal support, the party alleged to have committed adultery and their paramours routinely invoke the Fifth Amendment’s protection against self-incrimination when they are called to testify. See Watts v. Watts, 40 Va. App. 685, (2003); Fickett v. Fickett, 2001 Va. App. LEXIS 120; Legat v. Legat, 1999 Va. App. LEXIS 497; Romero v. Colbow, 27 Va. App. 88 (1998). Invocation of the Fifth Amendment right against self-incrimination must be based on the invoking party’s “fear” of prosecution under Virginia’s statute criminalizing adultery. Va. Code Ann. § 18.2-365. Although prosecution under this statute may be infrequent and highly unlikely, Virginia courts provide Fifth Amendment protection to witnesses when he or she is questioned about alleged adulterous activity. Another interesting anomaly under the post Lawrence regime is that a consensual private act of sodomy between a married and unmarried person, previously a felony, would no longer be criminal under the holding in Lawrence. However, an act of adultery, a misdemeanor, between the same people at the same location and at about the same time, would likely still be a crime. The unfortunate Clinton analogies aside, on its face, this result is utterly ridiculous.
The Sixth Circuit’s holding in Marcum that an adulterous relationship is not constitutionally protected becomes questionable in a post-Lawrence light. If Virginia courts construe the rationale of Lawrence to apply to private, consensual adulterous acts, as it did with fornication, committing adultery would no longer constitute a crime. Therefore, testimony concerning adultery would not be subject to Fifth-Amendment protection and adultery will become arguably easier to show as grounds for divorce under § 20-91(1) of the Virginia Code. Another interesting side feature arises on the question of the burden of proof on an Adultery claim if the behavior is declared to be constitutionally protected. Previously the burden of proof to establish adultery has been held to be subject to a clear and convincing evidence standard. See Haskins v. Haskins, 188 Va. 525, 530-31 (1948); Painter v. Painter, 215 Va. 418, 420 (1975); Dooley v. Dooley, 222 Va. 240, 246 (1981). The rationale for that standard is that the charge of adultery is a criminal offense and uniquely damaging to the reputation of the party charged, and therefore the general presumption against innocence should be held against it. Haskins, 188 Va. at 530-31. Furthermore, proving adultery to set up a bar to alimony to the alleged adulterous party will become easier under Virginia’s statute governing spousal support, but the policy rationale for the statutory bar comes in to question at a core level. The reasoning behind the application of an alimony bar to adulterers must come into question. Prior to 1988, the commission of any marital fault (cruelty, desertion, etc.) was a bar to an alimony award. See McClung v. McClung, 206 Va. 782, 782-783 (1966); D'Auria v. D'Auria, 1 Va. App. 455, 460 (1986). After 1988, the only alimony bar was adultery, subject to a “manifest injustice” exception. Will the policy rationale behind the bar remain intact if the behavior is no longer criminal?
The above analysis regarding Fifth Amendment effects assumes that courts will stop at simply invalidating the adultery statute. While decriminalization presents the most obvious form of protecting private adulterous relationships under Lawrence, providing adultery as grounds for divorce and a bar to spousal support also involves a state action. The state is in fact regulating “individual decisions by married persons, concerning the intimacies of their physical relationship”  by establishing through statute that that decision creates a grounds for divorce and a presumption against spousal support. Therefore, the entire role of adultery in divorce, a creature of statute, is called into question by applying Lawrence’s rationale to adulterous relationships.
Realistically, Virginia courts are not likely to invalidate Virginia’s statute that criminalizes adultery. Although Justice Scalia emphatically states that state laws of this nature are open to a Due Process attack under the rationale of the majority in Lawrence, it is an interesting question whether the Virginia courts will distinguish the result in Lawrence and Martin from the case of adultery. Language in the majority opinion distinguished the facts of Lawrence from other cases where the state could regulate liberties of individuals, such as in the case of prostitution or same-sex marriage. See Lawrence, 539 S.E.2d at 578. This language implies that the state still has powers to regulate the liberty of individuals without violating the Due Process Clause. This conclusion is supported by the recently decided Singson case, where the court explicitly rejected Lawrence’s application to consensual acts of sodomy that occur in a public location.
In Justice O’Connor’s concurrence, she reasons that the state still has a legitimate interest in preserving the “traditional institution of marriage.” See Lawrence, 539 S.E.2d at 585. Under Va. Code Ann. 20-45.2, Virginia has rejected recognizing same-sex marriages, created in other states, in the face of the Full Faith and Credit clause of the Constitution. Because the Supreme Court has long recognized a public policy exception to the Full Faith and Credit clause, Virginia adheres to the principle that a marriage valid where celebrated is not valid when against a state’s public policy. See Andrews v. Andrews, 188 U.S. 14 (1903) Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425, 429 (1939). Virginia’s protection of the institution of marriage in the area of same-sex marriage recognition suggests the state may similarly exercise its power to regulate personal liberty by criminalizing adultery. Therefore, while Justice Scalia’s dissent correctly predicted that the majority’s idea of personal liberty will result in state’s invaliding statutes such as fornication, as in Martin, it does not necessarily follow that adultery statutes are next on the chopping block. Furthermore, the state frequently intervenes in individual decisions when these decisions are contrary to Virginia’s strong public policy in support of marriage. For example, under Va. Code Ann § 8.01-398, in a civil proceeding, a person can prevent someone from disclosing private communications between him and his spouse. Moreover, Virginia courts have held that a contract restraining marriage is against Virginia’s public policy, and therefore impermissible under Virginia law. Meek v. Fox, 118 Va. 774 (1916) (holding that a father’s condition subsequent converting a fee simple to a life estate if his daughter marries is invalid because the condition is a restraint on marriage). Therefore, given Virginia’s strong disposition to the preservation of marriage, courts may well hold that invalidating the adultery statute stretches the rationale of Lawrence too far.
Virginia courts have clearly held that the state retains some power to regulate liberty interest, as illustrated in the Singson decision regarding sodomy in public. The holding in Marcum clearly supports the proposition that this power applies to the act of adultery as it arguably stands on principles distinguished from fornication and sodomy outside of marriage. However, Marcum heavily relies on the reasoning in Bowers, which subsequently was overruled by Lawrence. Moreover, Martin holds that Lawrence “sweeps within it all manner of state’s interests and finds them insufficient when measured against the intrusion upon a person’s liberty interest…in the form of private, consensual sexual conduct between adults.” Therefore, the state’s interest in protecting marriage might not “measure against” adultery in the form of private consensual conduct between adults. The Virginia Supreme Court has not yet ruled on this issue, although the argument was raised concerning the constitutionality of the adultery statute in a trial in Fairfax County Circuit Court. “First, Fornication, Then Adultery?” Virginia Lawyers Weekly, May 23, 2005. There the Court declined to declare the statute unconstitutional. Id. However, competing forces of individual rights and public policy leave adultery regulation walking the tight rope between invalid fornication statutes and valid public sodomy statutes. Given the potential dramatic changes in the role of adultery in divorce cases, every Domestic Relations attorney should give thought to which way it will fall.
 Va. Code Ann. 18.2-29 is Virginia’s statute against Criminal Solicitation
 Va. Code Ann. § 20-91(1), Grounds for Divorce from Bonds of Matrimony
 Va. Code Ann. § 20-107.1. While, decriminalizing adultery result in an easier showing of adultery by a spouse seeking support, the provisions of § 20-107.1(B) allow an adulterous spouse to recover spousal support if the denial of that support would constitute a “manifest injustice.”
 See Lawrence, 539 U.S. at 578.
 The Federal Defense of Marriage Act, signed into law by Bill Clinton in 1996, enforces this principle in allowing a state to deny any marriage between persons of the same sex that has been recognized in another state.