Case summary by John Crouch
CRIMINAL LAW — CONSTITUTIONAL LAW — FORNICATION AND POSSIBLY ANY OTHER "INTIMATE RELATIONSHIP" PROTECTED. The Virginia Supreme Court struck down a statute making fornication a crime, citing Lawrence v. Texas, the U.S. Supreme Court decriminalizing sodomy. 607 S.E.2d 367 (1/14/05, 31 FLR 1137). The ruling did not come in a criminal prosecution, so the state was not involved. This was a suit for a tort of transmitting a sexual disease, and the defendant argued that the plaintiff could not recover because she had been engaged in the crime of fornication at the time the injury occurred, and in fact the injury was caused by her commission of that crime.
The trial court had said the fornication law was rationally related to valid purposes such as protecting public health and encouraging marriage for the procreation of children. The state interest the trial court cited was not in encouraging heterosexuality because it produces children, but rather, “encouraging that children be born into a family consisting of a married couple.” But the Supreme Court, in an opinion by Justice Lacey, held that there is “no relevant distinction” between this case and Lawrence. The state interests that the trial court cited are no longer sufficient because the Lawrence doctrine “sweeps within it all manner of state’s interests and finds them insufficient when measured against the intrusion upon a person’s liberty interests when that interest is exercised in the form of private consensual sexual conduct between adults.”
So far the result is not too surprising. But how much further is the logic of the Lawrence case going to go? What does this Martin opinion indicate about where the Court will draw the line when sexual activity gets more mixed up with the kinds of cases we family lawyers deal with, such as adultery in divorce? The court explains that Lawrence was not about a fundamental right to perform specific acts, but was about “the right to enter and maintain a personal relationship without governmental interference,” and that statutes criminalizing certain acts were really aiming “to control a personal relationship” that people have a liberty interest in – a right to have “a personal relationship ‘in the confines of their homes and their own private lives’ and that an element of that relationship is...intimate conduct.” It notes that Lawrence adopted Judge Stevens’ dissent in Bowers v. Hardwick, which said that the Due Process Clause of the 14th Amendment protects “intimate choices by unmarried as well as married persons.” This means that “Decisions by married or unmarried persons regarding their intimate physical relationship” are protected.
Describing the rational-basis review that the statute in Lawrence was subjected to, the Virginia court says that the U.S. Supreme Court’s finding that the sodomy statute “furthers no legitimate state interests which can justify its intrusion into personal and private life of the individual” is not limited to the state interests which were asserted by Texas in the Lawrence case but “sweeps within it all manner of state interests and finds them insufficient” to justify intrusion upon “private consensual sexual conduct between adults.”
So, what about conduct between one married adult and one adult who is not married or married to somebody else? Well, first, this opinion talks repeatedly about the case of “two unmarried adults” but that may just be because that was who involved in this case and that is who would be subjected to the fornication statute rather than the adultery statute. Portions of the opinion, citing the Stevens dissent in Bowers, do seem to refer to two different classes: (1) two people within a marriage, whose sexual privacy has been protected ever since Griswold v. Connecticut, and (2) a pair of unmarried people. But in its most absolute statements, this opinion talks about “private consensual sexual conduct between adults” as its standard for when there is an inviolable liberty interest.
The court takes pains to note that its ruling does not apply to anything involving “minors, non-consensual activity, prostitution or public ...fornication,” but that list does not mention any exception for adultery.