Sexual Autonomy

Ninth Circuit: Adultery Is Constitutionally Protected

The court holds that Lawrence v. Texas limits government restrictions on extramarital sex.

|The Volokh Conspiracy |

In Friday's Perez v. City of Roseville decision, the Ninth Circuit held that Lawrence v. Texas covers adulterous sex:

Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has "traditionally viewed a particular practice," such as extramarital sex, "as immoral."

The court didn't consider that adulterous sex, which involves the breaking of a vow made to the other spouse, might not be covered by the it's-just-consenting-adults logic of Lawrence. (Extramarital sex with the consent of the other party, as in an "open marriage," may be a separate matter.)

As you might gather, Perez didn't involve criminal prosecutions for adultery, which appear very rare in the U.S. except for the military justice system, and even there are allowed only when the adultery "was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces," for instance when it involved a fellow service member's spouse. Nor did the case involve civil liability, for instance under the torts of criminal conversation or alienation of affections, which are still recognized in several states, and fairly regularly lead to liability in North Carolina (see, e.g., Malecek v. Williams (N.C. App. 2017)).

Rather, in Perez, a police department fired a police officer, who then argued the firing was based in part on the officer's adultery. The Ninth Circuit concluded that, if that was true, the firing would violate the officer's constitutional rights unless the adultery "negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation"—this would be a pretty similar test to that used for firings based on other constitutional rights, such as Free Speech Clause rights.

The Ninth Circuit relied on a 1983 Ninth Circuit precedent that had taken a similar view, though that case hadn't discussed whether adultery might be different enough from other sexual conduct to be constitutionally unprotected. And the Ninth Circuit acknowledged that its position differed from that taken by post-Lawrence Fifth and Tenth Circuit cases dealing with similar matters. If the city petitions the Supreme Court, there's a good chance, I think, that the Court will agree to hear the case (though I can't speak with any confidence about how the Court would resolve it).

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  1. A non criminal effect of adultery can also be the loss or denial of Security Clearances as well. While not a civil/criminal issue, it is an effect adultery has on one’s job opportunities in certain sectors. The basis of the denial would be for providing a means of blackmail.

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    2. Also true of beating up your spouse!

    3. That has more to do with the deception typically involved and the fact that it makes the person vulnerable to blackmail than with the adultery itself.

    4. The security clearance process has long been held to be nonjusticiable: the courts won’t entertain challenges to the denial of access to classified information.

    5. JA, you have no clue what you’re talking about.

      Here’s a link to the Defense Office of Hearings and Appeals (DOHA) which lists cases that DOHA has adjudicated. Not once is adultery mentioned.

      Scroll down to the cases that end in .h1 (the .a1 cases are appeals).

      http://ogc.osd.mil/doha/industrial/2017.html

      You’ll see most of the denials are due to financial issues, illegal drugs, and foreign connections.

  2. Question: What is the general rule with respect to employee/employee sexual relationships not involving adultery? Can a government employer generally forbid its employees from engaging in sexual relationships with each other?

    1. Within the chain of command (that is, those with a supervisor/supervisee relationship), then clearly the government (and any other company) may forbid its employees from engaging in such relationships. In fact, the potential for abuse and coercion is so high that failure to forbid such relationships could be evidence against the company or agency in a harassment suit. No fraternization policies that focus on supervisor relationships are common and routinely upheld.

      Companies and agencies may forbid such relationships even across the chain of command (peer-level within the same chain or different levels but not in the same chain) because of the potential for the appearance of favoritism, etc. No fraternization polices set at this broader level are less common and pretty much only honored in the breach – but still regularly upheld when offered as a justification for firing someone (absent defenses such as pretext).

      In both cases, however, the forbidding is just a matter of employment law. That is, violating the rule could get you fired but it can’t land you in jail.

  3. But isn’t this exactly what the holding of Lawrence v. Texas was? The court there said:

    “[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

    Scalia pointed it out in his dissent:

    “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.”

    Why do people who applaud constitutional interpretation by emerging awareness not realize that once they accept this sort of thing they’ve nothing to say when an awareness emerges that they don’t like? It’s the reason that the Republicans in the Senate don’t completely remove the ability of the minority to block legislation with 41 votes. They know that the tables will inevitably turn.

    This would have been laughed at by the generations who ratified the Constitution. In some ways we are like the frog that won’t jump out of the water if it is heated slowly enough.

    1. They also know that when the tables turn, the filibuster is dead, because the Democratic leadership were saying that they’d kill it just before the last election, when they thought they’d be in control. They preserve the filibuster because it makes a good excuse for failing to accomplish things they never meant to do, not because they ever expect to get to use it again themselves.

      The real argument against “emerging awareness” is that it’s a sham. The judiciary only get out ahead of trends they approve of, ignore trends they disapprove of, and are perfectly willing to pretend a trend exists even as the democratic branches are all responding to pressure in the opposite direction.

      It’s just an excuse for judges to impose their own will on society.

      1. The real argument against anyone who disagrees with your Constitutional understanding is to declare they’re legislating from the bench and get really angry.

        Doesn’t the paucity of supporting evidence you saw fit to include tell you something about how your philosophy is internally, not externally based?

        1. Look, Sarcastro, everybody is aware that, at the time the judiciary identified the “emerging awareness” around SSM in Obergefell, one state after another was democratically attempting to stop the courts from imposing it. The evidence was less of an “emerging awareness” than of a democratic rejection which the courts just ran roughshod over.

          Now we’re into the resignation stage. Yet to be seen is whether resignation gradually morphs into acceptance, as was the case with the (Much better grounded in the actual Constitution!) civil rights movement, or hardening opposition, like we saw with Roe v Wade.

          But the idea that the courts were just implementing public opinion is a dark joke.

          1. Everybody is aware that you’re right because of a correlation of two events? Well, I’m convinced!

          2. Certain states opposed same sex marriage though most of the action in doing so — generally by means of state constitutional measures that blocked normal democratic processes when certain groups of people were involved [selectively targeting people is a basic equal protection issue] — occurred a decade or more beforehand.

            There was no “all” btw. The POTUS, e.g., was in support of the development here. I assume that counts as part of the “democratic” direction of the country. The fact California, in 2008, e.g., by a bare majority didn’t want “marriage” for same sex couples while supporting full domestic partnership rights and the legislature passed a same sex marriage law before the governor vetoed it also shows even those actions only tell so much on society-wide opinion.

            The opinion had a list of examples of the awareness in question. “Emerging” is a telling adjective as well. Of course, when constitutional rights are involved, democratic efforts by a few states (such as those who wish to ban handguns or whatnot) might not be enough.

      2. “Emerging awareness” sometimes is referred to as “learning.”

    2. Swood, you’re basically arguing that it’s all or nothing because principled lines can’t be drawn, and I completely disagree. It’s possible, for example, to draw a line between fornication and adultery on the grounds that fornication doesn’t risk breaking up a family, which in turn makes it more likely that children will suffer emotional and financial hardship. It’s possible to distinguish gay marriage from bestial marriage on the ground that animals are unable to consent to entering into a marriage contract (which is also the reason seven year olds aren’t allowed to marry). It’s possible to distinguish polygamous marriage because it’s likely to result in more children with fewer resources to provide for them. Yes, superficially, there are many things that look a lot alike, until you actually examine them up close.

      1. You make valid points, but those are questions for the legislature, not the judiciary. The Constitution, when ratified, was not believed to give the judiciary the authority to invalidate morals legislation.

        Any anyway, how does this work? One idea behind the Constitution is that a simple majority of the country can’t add new constitutional rights. When the Supreme Court discovers an “emerging awareness” of new constitutional rights does that require them to find that a super-majority of the population has the awareness, or does it only require that the “right-thinkers” have the awareness? It must be the latter, since the creation of rights to abortion and to gay marriage obviously wouldn’t have qualified under the former.

        1. In SwoodWorld, segregation of Mississippi schools was (and would and should still be) a question for the Mississippi legislature.

          Carry on, clingers. So far as medieval social policies can carry anyone in an improved, modern America, that it.

          1. I am afraid that, in accordance with the emphatic recommendation of Arthur I. Kirkland, I cannot take what you say seriously.

          2. Ah, c’mon, Rev Arthur, we all know that the Democrat party in Mississippi would have lost power eventually! Once that happened, it would have only been a matter of time for the Mississippi legislature to have done something about it!

            Of course, if there had been fewer Democrat-appointed judges on the Supreme Court, the 14th Amendment would have been applied, and the Supreme Court could have declared Jim Crow unconstitutional on grounds that they impeded individuals from their rights to free association.

            But, hey, what can I say, Democrats will be Democrats, and will insist on fighting for their racism, no matter what!

        2. OK, but who should draw the line is a separate question from whether that line can be drawn in a principled fashion. And when Scalia makes an all-or-nothing argument that if gay marriage is protected, then bestial marriages must be as well, what it really means he isn’t too intellectually lazy to go to the honest work of trying to draw that principled line.

          And as community standards evolve, so does our understanding of what constitutional terms and norms mean. At the time the Constitution was written, I doubt anyone would have taken seriously the idea that the Eighth Amendment prohibited public floggings or brandings. For that matter, South Carolina executed someone by burning at the stake as recently as the 1830s. I very much doubt that even the staunchest supporters of states rights or originalism would seriously argue those things would not be considered “cruel and unusual” today. Trust me, if you ever actually got originalism, you’d hate it.

          1. is that he “is too intellectually lazy*.

          2. And when Scalia makes an all-or-nothing argument that if gay marriage is protected, then bestial marriages must be as well, what it really means he is too intellectually lazy to go to the honest work of trying to draw that principled line.

            Why is it Scalia’s job to draw that line? Scalia was right in criticizing the majority when he said that “the Court makes no effort to cabin the scope of its decision to exclude them from its holding.” The problem is that the majority announces no coherent principle to explain why all the other activities would not also be constitutionally protected. But it is Scalia who is intellectually lazy for failing to come up with one?

            And as community standards evolve, so does our understanding of what constitutional terms and norms mean.

            If community standards have evolved then why would the community have a law that applied a punishment that violated those standards?

            The argument you are making could as easily say that the requirement that the President be at least 35 years old can be ignored because people have different ideas today about political maturity. The solution for evolving community standards that come to conflict with the Constitution is to amend the Constitution.

            1. Because this is a free society, so the burden is on the state to justify any intrusion into personal liberty. Normally that’s not a high hurdle, but still, this is not a totalitarian state in which the presumption is that the state can do whatever it pleases.

              When nobody is going to be impacted by sexual behavior except the adults involved, it’s harder to make the case that it is of concern to the state. If it starts impacting children or third parties, then the state’s interest increases. It then becomes Scalia’s job to draw the line because he has to decide if the harm to society out-balances my interest in personal liberty.

              Communities have lots of laws on the books that are there because they’ve always been there, because of legislative intertia, because of special interest groups that wield disproportionate power, I’ll bet if you randomly picked up any statute book, you’d find plenty in it that is completely opposed to current community values. On a clean slate, I doubt any state today would pass a sodomy statute if they were doing it for the first time, but that doesn’t mean the ones already on the books are going to get repealed. So when it gets to the courts, the question is whether, in a society in which individual liberty is the default, the state can articulate a rationale that trumps my interest in individual liberty. In Lawrence v. Texas, a majority of the justices didn’t think the state had succeeded, and I think they were right.

              1. Because this is a free society, so the burden is on the state to justify any intrusion into personal liberty.

                Is this a principle from the Constitution? Where are you getting it and what does it mean? What are our personal liberties?

                And what does “personal liberty” mean? The fourth amendment gives us a constitutional right to be free from unreasonable searches and seizures but wouldn’t such a freedom be a “personal liberty,” and so be protected from intrusion on that ground? Why then the fourth amendment?

                Normally that’s not a high hurdle, but still, this is not a totalitarian state in which the presumption is that the state can do whatever it pleases.

                Why is that not a high hurdle? To intrude on enumerated constitutional rights, such as freedom of speech, the government must demonstrate a compelling governmental interest. No so for unenumerated personal liberties?

                1. Swood, take a look at the Ninth Amendment. The rights enumerated in the Constitution are illustrative rather than an exhaustive list. So the argument that the Constitution says nothing about abortion or gay rights is entirely beside the point.

                  You have the right to pursue happiness as you see fit, unless the state has some legitimate need to prevent you from pursuing it in a particular way. Whether it has to be a compelling interest depends on what we’re talking about. The more it impacts on other people, the greater the state’s interest is.

                  1. Swood, take a look at the Ninth Amendment. The rights enumerated in the Constitution are illustrative rather than an exhaustive list.

                    The 9th amendment says:

                    The enumeration in the Constitution, of certain rights, shall not be construed to deny or
                    disparage others retained by the people.

                    So is it your position that the Supreme Court has carte blanche to declare new constitutional rights simply by saying that the new right is one that was retained by the people? Is this the Supreme Court’s view of the 9th amendment?

                    1. Carte blanche, no, but you’re still missing the point. The Constitution was written in broad, sweeping language, without a lot of specifics. What, for example, is a privilege and immunity? How do you know when there’s been enough due process? Does religious freedom include the right to hijack airplanes and fly them into buildings if your religion tells you to do that? The Constitution on its face answers none of these questions. And the judiciary’s job is to fill in the blanks and to apply broad, general principles to new issues that the framers didn’t think of.

                      I have no clue what James Madison would have thought of gay marriage, because in his day it wasn’t even on the radar. Had he had the benefit of recent social science data, he might have agreed with Obergefell or he might not. I don’t know and neither do you. But since this is a free society, it’s the state’s burden to demonstrate a need for a law that infringes persona liberty. Five justices thought the state hadn’t succeeded. I think they were right.

                    2. Carte blanche, no, but you’re still missing the point. The Constitution was written in broad, sweeping language, without a lot of specifics. What, for example, is a privilege and immunity? How do you know when there’s been enough due process? Does religious freedom include the right to hijack airplanes and fly them into buildings if your religion tells you to do that? The Constitution on its face answers none of these questions. And the judiciary’s job is to fill in the blanks and to apply broad, general principles to new issues that the framers didn’t think of.

                      I have no clue what James Madison would have thought of gay marriage, because in his day it wasn’t even on the radar. Had he had the benefit of recent social science data, he might have agreed with Obergefell or he might not. I don’t know and neither do you. But since this is a free society, it’s the state’s burden to demonstrate a need for a law that infringes persona liberty. Five justices thought the state hadn’t succeeded. I think they were right.

                    3. According to Harvard professor Laurence Tribe, the 9th amendment does not confer substantive rights: “It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.” Its purpose was to make sure it was clear that “all was retained that was not surrendered,” negating the implication of an increased number of implied rights for the federal government.

                      Your argument comes down to this: (a) today we understand that X should be a protected Constitutional right, (b) the Constitution protects all rights that should be constitutional rights, (c) therefore, X is a protected Constitutional right.

                      The problem is (1) what is the process by which it is determined that X should be a protected constitutional right, and (2) where in the Constitution does it say that all rights that should be protected are protected?

                      Scalia put it this way, “the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”

                    4. It doesn’t confer substantive rights; it merely recognizes that the list of enumerated rights is not an exhaustive list of all constitutional rights. And it’s a judge’s job to identify what is, and is not, a right, so this is another example of Scalia simply not wanting to do his job. Under Scalia’s interpretation, the Ninth Amendment is essentially an empty letter, so why would the framers have put it in the Constitution? Just to take up space?

                      Life, liberty and the pursuit of happiness are fundamental rights, which takes us back to the point I keep making: It is the state’s burden to show that a law that infringes on the pursuit of happiness is necessary to a legitimate state interest. If the state is going to tell me who to have sex with, it better be able to come up with a rationale for why it’s any of the state’s business.

                    5. If the state is going to tell me who to have sex with, it better be able to come up with a rationale for why it’s any of the state’s business.

                      OK, but how is it determined whether the reason the state gives is good enough? Suppose the state tells you that you can’t have sex with or marry your mother, who has had a hysterectomy, and the reason it gives has to do with immorality? How does a court go about evaluating the sufficiency of that reason?

                    6. The state’s argument would be that laws cannot be tailor made to individual circumstances; it would simply be too unwieldy. It’s why there’s a bright line age of consent for sex, even though some people below that line have the good judgment to make an informed choice to have sex, and God knows lots of people above that line don’t. So even though some incestuous relationships would not cause social harm, enough would to justify having a general ban on them.

                      And judges, whose job is to, well, use their judgment, would then have to weigh that argument against the contrary argument, the available evidence, and use their judgment as to which was more compelling.

                      The problem with using morality as the standard is that it’s so subjective. There are probably far fewer things whose morality is completely non-controversial than you might think. Utility is a far better measuring stick since results are usually observable.

                    7. So even though some incestuous relationships would not cause social harm, enough would to justify having a general ban on them.

                      So let’s suppose that the chances of a genetic defect from an incestuous marriage are x%. We could then find any number of other conditions where the chance of a birth defect resulting from that couple procreating would be greater than or equal to x% and make it against the law for those people to marry? For example, if x is less than 1 in 35 then it would be against the law for women 45 or older to have children, as it would be for parents who are carriers of Fragile X syndrome?

                    8. In fact, why couldn’t the incestuous couple rightly claim that making their marriage illegal without making illegal all other marriages having a chance of birth defects equally high would deny them the equal protection of the law? What justifies singling them out?

                    9. Assuming that the incestuous couple is an exact (or close to exact) apples to apples comparison to other couples with an equally high chance of birth defects, they probably would have an equal protection argument. However, I can think of several distinctions between them off the top of my head. For one thing, you often don’t know that couples have a higher chance of conceiving deformed offspring without doing invasive testing, whereas the mere fact of being closely related tells us off the bat that there’s a higher risk. For another thing, it’s harder to police non-obvious genetic issues. So I think this is another example of two circumstances that superficially appear to be analogous but really aren’t on closer examination.

                      And if you are ultimately able to show that there is no good reason to prevent incestuous marriages on utilitarian grounds, then as a practical matter, you’re left with banning them because most people find them icky (which is also 90% of opposition to same sex marriage). You’re entitled to your opinion about what’s icky, but that’s not enough to invade the rights of people who really aren’t hurting anyone else.

          3. You have too easily brushed aside the question of who ‘draws the line’. Who is better equipped to gauge those evolving standards? Federal judges appointed for what amounts to a life term? Or state legislators standing for election every two to four years? Too often, as in the same-sex marriage controversy, advocates of evolving standards want the courts to grant them constitutional protections as an unpopular minority while at the same time claiming that their special issue was supported by an “evolving majority” . Can’t wait a couple of years for that majority to “evolve” enough to win legislative elections, though…..

            1. BigChief, you’re ignoring the fact that rights, by definition, are not subject to majority approval. How long would blacks in the South have had to wait for Mississippi and Alabama voters to evolve on the issue of racial equality? Part of the reason judges are appointed for life and not subject to election is so they can make unpopular decisions.

              1. If the decisions are “unpopular” (your term), then quit claiming that some “evolving majority” supports them. Aren’t you wanting to have it both ways?

                1. But evolving majority is only one aspect to it; if 99% of the population supported slavery or executing shoplifters, it would still be unconstitutional. Sometimes what is constitutional has majority support, sometimes there’s an evolving majority, sometimes it has very little support. Judges are free to rule in favor of the Constitution in all three cases without having to worry about keeping their jobs.

            2. When it comes to rights, which ought not be subject to denial by the majority, I’d rather have federal judges draw it.

              1. So, can the majority vote any of those rights into existence? (For example, civil marriage, purely a creature of statute)Can ‘denial’ be completely divorced from creation? Are there any democratic legislative Acts which cannot be repealed by the same process by which they are enacted?

                1. I’m not familiar with the history of civil marriage, but I will say this.

                  If, in the absence of civil marriage, the government confers benefits on those married in religious ceremonies, then civil marriage, if not created by statute, ought to be, and I think would be – a Constitutional right. If not, then the law is conferring on religious couples benefits not available to non-religious ones. That can’t be right.

          4. “For that matter, South Carolina executed someone by burning at the stake as recently as the 1830s.”

            I think you may be confusing this with some other practice that persisted that late, though I’m not sure which. There are only a few documented instances of judicially-ordered burning at the stake in the early colonial era, all involving slaves, but certainly not as late as the 1830s. It’s conceivable that a lynch mob may have done it, but not as an authorized legal punishment.

            1. No, it was a judicial execution:

              http://www.executedtoday.com/2…..y-burning/

      2. It’s possible, for example, to draw a line between fornication and adultery on the grounds that fornication doesn’t risk breaking up a family, which in turn makes it more likely that children will suffer emotional and financial hardship.

        It’s possible to distinguish polygamous marriage because it’s likely to result in more children with fewer resources to provide for them.

        (I hope I got the formatting right finally)

        Actually, its not. Children have been written out of marriage via Obergfell.

        That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate

      3. It’s possible to distinguish polygamous marriage because it’s likely to result in more children with fewer resources to provide for them.

        Not if they’re polygamous same-sex marriges.

      4. ” It’s possible, for example, to draw a line between fornication and adultery on the grounds that fornication doesn’t risk breaking up a family, which in turn makes it more likely that children will suffer emotional and financial hardship.”

        But it didn’t find a line in this case, which I think is his point. Scalia had argued that the decision was so open-ended that it would wash away all lines, and this appears to support his contention.

    3. Wow, it’s like you hear Lawrence and have to haul out the same tired old rant. Scalia’s dissent did not carry the day. His parade of horribles has yet to come to pass. Repeating it but with added bitterness will not change this.

      And invoking the Founders laughing/vomiting at modern America in the same breath as boiling the frog has got to be some right-wing BINGO somewhere.

      1. Scalia’s dissent did not carry the day.

        True, but you just point out that there’s nothing stopping a majority of the Supreme Court from doing anything they want, and that the public has come to accept this. What will you say when the Supreme Court finds an emerging awareness that minimum wage laws violate the liberty guaranteed by the Constitution?

        His parade of horribles has yet to come to pass.

        Not at all. His parade of horribles included a right to gay marriage and then that right emerged. Here we have the 9th Circuit finding a constitutional right to adultery. How can laws against bigamy, adult incest or prostitution possibly stand?

        1. The Supreme Court keeps its sense of legitimacy because it is so careful about it’s reasoning. There is a reason why Posner was so shocking.

          I like the narrative that the public ‘has come to accept this.’ They have always accepted this.

          Also interesting is that you had to invent a hypothetical of the Supreme Court being conservative. There are lots of things the Supreme Court does liberals don’t like.
          Voter ID laws,
          The right to education,
          Eviscerating the Voting Rights Act’s preclearance
          Allowing states to opt out of Medicare expansion.
          And, of course, Citizens United (though I personally put the fault at Buckley v. Valeo)

          Just because liberals don’t throw a tantrum doesn’t mean we always agree with the Court.
          ========================
          You do realize that cherry picking does not make the slippery slope fallacy not fallacious, yes?

          1. It was worthwhile to argue with bigots a half-century ago, Sarcastro.

            Today, the most sensible course it to wait for them to die off, and take what is left of their stale thinking with them.

          2. The Supreme Court keeps its sense of legitimacy because it is so careful about it’s reasoning.

            The reasoning is that they sense an emerging awareness about liberty. Is that careful reasoning?

            I like the narrative that the public ‘has come to accept this.’ They have always accepted this.

            I don’t think so. It is said that the Supreme Court in earlier days was very reluctant to declare legislation unconstitutional and to order the Executive to do something, out of fear that they would be ignored. For example, the Supreme Court in Mississippi v. Johnson (1866) refused to issue an injunction ordering the President to do something. They said

            “The President of the United States cannot be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed. ?Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. ?we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.”

            Lincoln defied the Supreme Court. The people and the Supreme Court have not always accepted that the Supreme Court must be obeyed by the other branches.

            1. I would dispute your flip characterization of the reasoning in Lawrence. Kennedy may not be great at doctrinal concreteness, but he’s pretty good at laying out more than just a ‘sense.’

              ‘It is said…’ Anonymous passive voice is not a good sign.
              I don’t know the stats, but certainly there are lots of examples of the Supreme Court contradicting Presidents before the Civil War. And of course your timeline is telling. After the Civil War, the Constitution’s reach changed quite a bit, and the Court’s ambit along with it.

              Lincoln defied the Supreme Court. As did Jackson. And those are two moments of such singularity in history we still talk about them.

              The past you yearn for ain’t even real.

              1. I would dispute your flip characterization of the reasoning in Lawrence. Kennedy may not be great at doctrinal concreteness, but he’s pretty good at laying out more than just a ‘sense.’

                Well, here’s the case: Lawrence v. Texas. The majority opinion is not that long. Can you explain how the Court differentiates (if it does at all) between protected and unprotected activities? Perhaps you could explain the principle underlying the following:

                “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

                1. Thanks for the link. I took a course on Lawrence and gay marriage generally, though, so I’m pretty familiar with the decision. I have my issues with it, but Kennedy giving short shrift to the march of progress of equality and citizenship is not one of them.

                  1. Thanks for the link. I took a course on Lawrence and gay marriage generally, though, so I’m pretty familiar with the decision. I have my issues with it, but Kennedy giving short shrift to the march of progress of equality and citizenship is not one of them.

                    Awesome! Can you explain the principle to me? How do we differentiate between protected and unprotected activities? Does it go beyond the personal preference of the justices? What are the criteria by which we can determine that “laws once thought necessary and proper in fact serve only to oppress.” And when we say “once thought,” are we referring to the thought of the Supreme Court or the thought of the general population, or the thought of some other group? If the second or third how does the Court evaluate this thinking and how do they learn how to do this? It clearly isn’t taught in law school.

                    Well, thanks in advance for your help with these questions.

                    1. How do we differentiate between protected and unprotected activities?

                      Isn’t that part of what the court has done for a long time? They think, analyze, consider evidence, etc. to determine whether Constitutional principles protect the activities in question. They sometimes get it wrong – in your opinion or mine – but until our judges are divine and not human they will get some things wrong.

                      ….What are the criteria by which we can determine that “laws once thought necessary and proper in fact serve only to oppress.”

                      We use evidence and logic to determine that they are oppressive and have little or no public benefit.

                    2. Isn’t that part of what the court has done for a long time? They think, analyze, consider evidence, etc. to determine whether Constitutional principles protect the activities in question. They sometimes get it wrong – in your opinion or mine – but until our judges are divine and not human they will get some things wrong.

                      But I am saying that there are no objective standards so this is necessarily done on the basis of the personal preferences of the justices. Why protect same-sex marriage but not the right to take recreational drugs or the right to operate a house of prostitution in a residential neighborhood or the right of a couple to copulate in a public park? What criteria should be used in making these decisions?

              2. “Lincoln defied the Supreme Court. As did Jackson.”

                I’m not sure that this is correct. Lincoln defied Taney, but he was sitting as a circuit judge. And Jackson was not a party to the case he is claimed to have defied.

                1. I’m not sure that this is correct. Lincoln defied Taney, but he was sitting as a circuit judge. And Jackson was not a party to the case he is claimed to have defied.

                  Taney was Chief Justice of the Supreme Court and it was his order that Lincoln ignored. See Ex parte Merryman.

                  Jackson was not a party to the case but he was President of the United States, whose job it is to enforce court orders and decisions, and he refused to enforce this one against the State of Georgia, saying “The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.”

          3. “Just because liberals don’t throw a tantrum doesn’t mean we always agree with the Court.”

            Are you really so blinded by ideology that you don’t realize that many liberals threw a tantrum over every one of those decisions? You inability to see the plank in your own eye is truly pathological.

            1. jph, perhaps I should have specified. Liberals may yell at the Court, but with the possible exception of Bush v. Gore, liberals do not argue the Court is illegitimate and should be defied.

              That’s you guys’ crazy side of the street.

              1. Are you really so blinded by ideology that you don’t realize that many liberals frequently question the legitimacy of the Supreme Court? You really didn’t see any liberals questioning the legitimacy of the Supreme Court after Gorsuch’s confirmation? Not any? No liberals claiming the Supreme Court is in the pocket of corporations after Citizens United? Really?

                1. I saw some question the legitimacy of Gorsuch, though that died down. Not so on the right, where that’s your go to whenever the Court does anything you don’t like.

                  CU has people pissed off, but hating a case is not the same as hating the Court.

                  You seem to have a pretty distorted view of Democrats and the left.

                  1. Sarcastro: Liberals don’t throw tantrums.
                    Sarcastro: Okay, liberals throw tantrums, but they don’t question the legitimacy of the Court.
                    Sarcastro: Okay, liberals do question the legitimacy of the Court, but they don’t really mean it like those meanies on the right.

                    Move those goalposts. Keep em moving, and maybe eventually you’ll find the sweet spot. I doubt it, but keep trying.

                    And your characterization of the left’s response to Citizens United and other decisions the left doesn’t like is laughable. Many responses are just as unhinged as those on the rights. Your ideological blindness has caused you to have a distorted view of both the left and the right.

                    1. I think it’s pretty clear what I meant by tantrums,. But I’m always willing to clarify my position in case I was unclear. I consistently offer others the chance to do the same.

                      You, on the other hand, assume bad faith. Then, when I take issue with the way you framed an issue, you just call my understanding laughable and quit the field without offering any other evidence other than personal insults.

                      You’re clearly smart, and I find talking to you clarifying up to a point. But you need to watch that your fury doesn’t prevent your engagement with people who disagree with you.

                    2. “I think it’s pretty clear what I meant by tantrums,”

                      It is. Something that’s only bad when conservatives do it.

                      “You, on the other hand, assume bad faith.”

                      No I don’t. Just because I disagree with your absurd characterizations of things does not mean I think you are operating in bad faith. I honestly think that the only way someone could believe that liberals don’t throw exactly the same kind of tantrums about the decisions that they disagree with is if they are so blinded by ideology that they refuse to critically engage the discussion. Like you.

                      “Then, when I take issue with the way you framed an issue, you just call my understanding laughable and quit the field without offering any other evidence other than personal insults.”

                      Why is it that people who offer nothing but their own opinion for their evidence act like they are entitled to a dissertation in response? Your position, offered entirely without evidence, is laughable. Why should I bother marshalling evidence to rebut an entirely unsupported laughable characterization? Plus, you’d just move the goalposts again.

                      “But you need to watch that your fury doesn’t prevent your engagement with people who disagree with you.”

                      You are such a sanctimonious little twit. I have no problem engaging with people who are worth engaging. You just are rarely one of them.

                    3. You know what I meant by tantrums, despite my saying I did not mean that. That is bad faith.

                      Thanks for diagnosing me as blinded by ideology. I disagree, and you will see me criticize Democrats on lots of stuff if you’re willing to look. But I often say the same thing about people on your side, so I suppose if I dish it out.

                      You are so persistant in insisting I am refusing to engage in discussion when you are the one spending most of your posts insisting I am refusing to engage in discussion and calling me names. Though I did find how British ‘You are such a sanctimonious little twit’ sounded pretty amusing.

                      It comes down to this: you are the one making a factual assertion about how liberals reacted to Citizens United. The fact that I disagree with you does not change on whom the burden lies.
                      ===================
                      I’m not good at resisting replying to people, and as I said I find replying to your objections clarifying when you manage to put forth something beyond calling me names. So I’ll keep replying to you.
                      I will just ignore your name-calling and proud refusal to engage my unworthy self and carry on somehow.

    4. One issue is that the court interprets Lawrence divorced from the context of discriminatory targeting of people engaged in activity. In the following passage, the court recognizes the basis for Lawrence but then elides into a broader rule (emphasized by its use of italics, denoted here by “*”):

      “Rather, Texas’ law ran afoul of the Constitution’s protection of substantive liberty by imposing a special stigma of moral disapproval on intimate same-sex relationships in particular. As the [Lawrence] Court explained, the liberty protected by the Due Process Clause must extend *equally* to *all* intimate sexual conduct between consenting adults, regardless of whether they are of the same sex or not, married or unmarried.”

      The court goes on:

      “Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has ‘traditionally viewed a particular practice,’ such as extramarital sex, ‘as immoral.'”

      As others have noted, adultery is treated differently in legal contexts such as divorce proceedings, in a way that would be impermissible for same-sex relations (eg I think that adultery with someone of the same or different sex wouldn’t make a difference in divorce proceedings). One might argue that treating adultery different in divorce proceedings is permissible as a narrowly tailored restriction, but that doesn’t jibe with the court’s broad holding that there is no difference (and also according with my example).

      1. Except Lawrence had the opportunity to address only sodomy laws when applied discriminatory towards gay people and explicitly rejected that option as too limited. Courts consider Lawrence divorced from the original context because the ratio decidendi is broader than that context.

        1. I agree the ratio decidendi of Lawrence is broader than the statute and demographics present in Lawrence. I think a valid objection is to my apparent suggestion that a statute could pass muster if it impacted people regardless of their sexual orientation. That was poor phrasing on my part.

          What I am saying is that adultery is different from sexual activity regulation at the heart of Lawrence. Thus the equality and universality – cited by the court – of the *protection of the sexual activity* doesn’t depend on whether that activity took place between people who are married or unmarried; or the same or different sex. As for the activity itself, the status of the parties doesn’t make a difference. But that doesn’t mean the status of the parties never matters. Marriage as a status obviously stands out as a meaningful and regulated status.

          Laws against adultery aren’t (and under Lawrence can’t be) about the particulars of the intimate deeds. Anti-adultery rules are more akin to laws against prostitution. Whatever consensual acts that may occur in the context of adulterous or paid interactions are beyond regulation. But the context of those interactions is regulatable.

  4. In divorce proceedings, adultery is a basis for unfavorable treatment from the court. Is that a Constitutional problem?

  5. What if someone turns me down for adultery, just because I comb my hair the wrong way, or am too old? Can I sue for discrimination?!?!?

    ITS NOT FAIR!!!!!!!!!!

  6. So I guess now the rule in the 9th Circuit is that you can’t criminalize conversation. Sounds like a good First Amendment proposition.

  7. As a career military person, I have wondered how long the adultery laws will remain in the Uniform Code of Military Justice. They are blatantly unconstitutional, and I doubt would survive a court challenge. I knew a Colonel who was forced out of his job for participating in a swinger group.

    Some people have said military is different because of the nature of the job. In that case, police, firefighters, and EMTs should fall under adultery laws also.

    1. A colonel is high enough up the military food chain to have access to a good amount of classified information.

      If his participationin the swinger group was fully open, that’s one thing. If he was living a double life, that makes him a security risk because he’s vulnerable to blackmail.

    2. After you cut through the bullshit, here is what went on there:

      “Well, Mr. Colonel, Sir, Dude, Sir… Now that we understand that you are a “swinger”, we can see that you’d be susceptible to blackmail! Someone might threaten to tell us that you are a swinger! Since you are susceptible to that threat, you can NOT have a security clearance, and an officer w/o a security clearance, is of no use to us. Goodbye!”

      In other words, “We are afraid of being told that which we already know!” And they wonder why “military intelligence” is regarded as an oxymoron…

      1. The concern is that a blackmailer would tell a person’s friends and family. The government could try to neutralize the problem by telling all your friends and family all your embarrassing deeds. But that’s problematic too. It’s simply a matter of assessing risk.

        You impute obvious nonsense reasoning to the military (we think X is bad and if you do X somebody might report you to us so you might pay them money so that they don’t…) but that should indicate to you that you are making an error.

        1. I’m not aware that the military would give a hoot if you gave some money to someone. They do give a hoot if you spilled secrets. The only way they should give a hoot about skanky behavior is if the skanky behavior leaves you open to being threatened, “Tell us your military secrets, or we rat you out to your boss.” If there IS NO info that your boss does NOT already know, then you are NOT vulnerable! So the military is flat-out full of shit, in this case!

          Then there is “behaving like an officer and a gentleman”… If that is still on the books, and “swinging” is clearly defined as NOT “behaving like an officer and a gentleman”… Leaving you (as an officer-boss) open to scorn by your followers… Then I can buy that. But the “secrets” shit, in these kinds of cases, is just that… A bunch of shit!

          1. OK, I thought about it some more… I can see the military’s points a bit more. ***IF*** the guy is hiding his skanky behavior from friends and family, then he’s vulnerable to those secrets being shared, as a threat… Even if the boss already knows.

            I spent some time in the military… I recall being told of (and reading about), even a bad gambling habit can leave you vulnerable. You can’t meet your budget, you are always short of money… Then a bribe from an enemy secret agent becomes more tempting. Gambling is legal in a lot of places, but being in constant gambling debt is a secret-clearance risk!

            1. Glad you see my point. I said “money” when I meant “secrets” just because I was thinking generically of blackmail. It would be difficult to ensure someone was blackmail proof when there is a known indiscretion (for lack of a better word). Maybe you told your wife, your mother, and your kids. Maybe you told professional, religious, and fraternal organizations to which you belong. Maybe you’re somebody who wouldn’t care if the whole world found out. Generally there is a risk that won’t be guarded against with great certainty.

  8. I think there’s an argument for why adultery could be different from Lawrence’s sodomy laws since one involves consensual acts that doesn’t harm third parties, while adultery has collateral consequences when it comes to impacting the marriage or family. That being said, a lot of those consequences are likely to be felt even if the adultery never happens just because it’s already a fairly broken relationship.

    But it does make me wonder, if adultery prosecutions were unconstitutional, what about alienation of affection torts?

    I’d also be curious if there are Constitutional issues for Bigamy statutes – particularly of the strict liability variety, which essentially criminalizes adultery mixed with pretending to be married with the state interest only in possibly confusing paperwork (not in having to recognize a void ab initio marriage). Obviously, then you definitely do start getting into genuine concerns whether decriminalizing bigamy would lead the state to having to recognize it.

  9. “[A]dulterous sex, which involves the breaking of a vow made to the other spouse, might not be covered by the it’s-just-consenting-adults logic of Lawrence.”

    I don’t follow that. The promise is not legally enforceable (at least not in most states). Why would breaking a legally unenforceable promise subject a person to deprivation of a Constitutional right?

    And lots of things break up marriages and families. Should Deirdre McCloskey be in jail?

    1. I don’t follow that. The promise is not legally enforceable (at least not in most states).

      What do you mean not legally enforceable? That a person who breaks such a promise cannot be legally sanctioned? But isn’t it a sanction that adultery is a basis for unfavorable treatment from the court in divorce proceedings?

      1. I don’t have an exact count, but I believe that the majority of Americans live in jurisdictions where adultery does not affect alimony awards, either because the state has no-fault divorce, or because, even in a divorce based on fault, adultery is not one of the factors that is supposed to affect alimony.

    2. There’s at least a third party involved. I agree it’s a thin reed, but it’s at least a distinction that doesn’t apply in other lines of litigation related to Lawrence (such as a ban on sex toys).

  10. Here is a question:

    In light of this decision (if affirmed) and Obergefell v. Hodges, what interest in marriage can the state actually have? Obergefell clearly stated that it is not even a rational interest for the states to have marriage as a unit for caring for children (planned and unplanned) because sterile, same sex, and even those totally uninterested in children have access. Now this decision says the state has no interest in preserving long term monogamy (with many benefits such as STD prevention, emotional health, wealth accumulation, etc).

    What then, is the state’s interest in marriage? And more generally, what steps can it take to preserving those interests?

    1. The state obviously has an interest in determining which persons can automatically get added to your employer-provided health insurance plan. /sarc

  11. “The court didn’t consider that adulterous sex, which involves the breaking of a vow made to the other spouse, might not be covered by the it’s-just-consenting-adults logic of Lawrence. (Extramarital sex with the consent of the other party, as in an “open marriage,” may be a separate matter.)”

    That dilemma is easily resolved. You can unilaterally demand a divorce from your spouse – in general their consent is not required – and adultery is less disruptive than divorce, because you stay married but just get a little something on the side. Under the great legal principle that the greater includes the less, the right to get end the marriage altogether without your spouse’s consent should imply a right to commit a lesser act against the marriage by having sex with someone else and then coming back to the marital home afterward.

    1. The government ignores and overrides the “till death us do part” – why can’t it override and ignore “forsaking all others”?

      1. Specific performance is disfavored in other contracts, why should a marriage contract be different?

        1. I think the “reforms” of marriage laws have gone beyond rejecting specific performance.

        2. There are other ways that marriage is not treated like other contracts. For example, when you breach other contracts, you are required to make the breached party financially whole, but when you breach the contract of marriage, you can often make the breached party a whole lot worse off, with the active cooperation of the state.

  12. Would think that before the law there would not be what is called “as immoral.” Immoral has to do with a religious law (teaching) and not the state law. Before the (state) law something is either legal or it is illegal which has nothing to do with morality.

    1. “Immoral” has to do with a lot more than just religious law or teaching. See, e.g., all those laws that impose consequences for conviction of a “crime of moral turpitude” (i.e., things that are wrong in and of themselves, such as theft and murder, as opposed to things that are simply malum prohibitum, like drinking a beer the day before your 21st birthday).

  13. Maybe this is all messed up, but doesn’t the constitution provide for the principle of “self-ownership”

    If you have a right to do with your “property” what you wish, then a morality law should not interfere with that natural right.

    1. No, the Constitution doesn’t provide for either “self-ownership” or “a right to do with your ‘property’ what you wish,” at that level of abstraction. In particular, the Constitution doesn’t generally secure to you a right to violate your promises (even ones related to your own body), or to help others violate their promises. Maybe there should be some special rule about promises related to sexual fidelity, but I don’t think a “principle of ‘self-ownership'” or “a right to do with your ‘property’ what you wish” is sufficient to dictate such a rule.

  14. It was good to see Prof Volokh using a quote of the additional element from the UCMJ directly: “…was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces…”

    I often find that civilians do not notice the differences between military law and civilian law. Although the additional element is similar to many other public and private employment ethics requirements/restrictions in employment contracts.

  15. The basic idea here that one should not lose a public position without proper cause and that otherwise personal liberty will be violated arose as I recall in earnest in the 1970s, some cases involving homosexuals, unmarried women deemed immoral and so forth. Brennan and Marshall at least a couple times dissented from the Supreme Court not taking up the issue. The result in this case to me can be see as a somewhat limited one — adultery might still be deemed reasonably relevant in certain contexts.

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