Overnight non-marital romantic companion restraints after Lawrence v. Texas

Posted Saturday, October 29th, 2011 by Gregory Forman
Filed under Child Custody, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Specific

South Carolina family court judges routinely issue restraints against exposing children to a parent’s non-marital romantic companions overnight. When concerned about appearing to be moral scolds, they justify these restraints as prohibiting the children’s exposure to “illegal behavior.” The specific criminal statutes implicated by such behavior are the prohibitions against adultery (S.C. Code § 16-15-60), fornication (§ 16-15-80) and buggery (§ 16-15-120).  South Carolina does not appear to criminalize mere sodomy that isn’t also buggery.

South Carolina’s code defines adultery as “the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person.”§ 16-15-70.  It defines fornication as “ the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman, both being unmarried.” § 16-15-80.   The code does not define buggery other than to indicate that it can be done “with mankind or with beast.” § 16-15-120.

A review of these statutes indicates that lesbians are not violating any of them.   The fornication and adultery statutes both require “a man and woman.”  While buggery isn’t defined in the code, every definition I am aware of involves an anus and a penis and lesbians lack the latter.  So when a family court judge prohibits a lesbian from exposing her children to her girlfriend overnight, that judge isn’t doing so to prevent exposure of the children to “illegal activity”; he or she is merely imposing a moral judgment upon that parent.

However even for heterosexuals, there’s strong argument that these criminal codes upon which the family court justifies these restraints are no longer valid.   Though not incontrovertible, the 2003 United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003), appears to render these South Carolina criminal statutes unconstitutional.  In Lawrence, a five member majority found Texas’ criminal prohibition on homosexual sodomy to be unconstitutional, holding that private and consensual sexual acts between two adults are protected from criminal prosecution by the liberty interests under the Due Process Clause.  Justice O’Connor’s concurrence sidestepped the due process argument by noting Texas’ statute only criminalized homosexual sodomy and therefore its disparate treatment of homosexuals and heterosexuals violated the Equal Protection Clause.

Subsequent interpretation of Lawrence by state courts and lower federal courts have reached myriad, and contrary, conclusions as to what criminal codes related to sexual activities Lawrence renders unconstitutional.   However no reported cases that I can locate indicate that criminal prohibitions against fornication or adultery remain constitutional after Lawrence v. Texas outside of a military context (where fraternization issues and the need for cohesiveness have been used to justify criminalizing adultery).  For examples, see Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005) (Virginia’s fornication statute rendered unconstitutional by Lawrence); Thong v. Andre Chreky Salon, 634 F.Supp.2d 40 (D.D.C.,2009) (Virginia’s adultery statute rendered unconstitutional by Lawrence); In re J.M., 276 Ga. 88, 575 S.E.2d 441 (2003) (Georgia fornication statute rendered unconstitutional by Lawrence).

It is almost certain that South Carolina’s criminal prohibition against consensual buggery and fornication cannot pass constitutional muster after Lawrence.  It is possible that South Carolina’s adultery statute may still pass constitutional muster because adultery is not considered a victimless crime (the other spouse is often perceived of as a victim of adultery).   Prior to Lawrence, some state appellate courts found adultery statutes were not unconstitutional based upon just such an analysis.  See e.g., Oliverson v. W. Valley City, 875 F. Supp. 1465, 1484 (D. Utah 1995) (finding Utah’s criminal prohibition on adultery was valid based on adultery’s social costs); Commonwealth v. Stowell, 389 Mass. 171, 449 N.E.2d 357, 360 (1983) (taking note of adultery’s destructive impact on marital relationship in finding state could make adultery a crime).   For a fuller discussion of the impact of Lawrence on statutes criminalizing adultery see, The Validity of Criminal Adultery Prohibitions After Lawrence v. Texas.

Still, it is noteworthy that no state appellate decision has found criminal adultery statutes remain constitutional since Lawrence.  Further, in 1992, South Carolina’s Supreme Court abolished “the ‘heart balm’ tort of alienation of affections,” finding “that the torts of criminal conversation and alienation of affections have outlived any usefulness they may have possessed in regard to preventing the dissolution of marriages.” Russo v. Sutton, 310 S.C. 200,422 S.E.2d 750, 753 (1992).  Since the South Carolina Supreme Court abolished civil liability to an innocent spouse for adulterous conduct, it is unlikely that it would find the harm from adultery against an innocent spouse should lead to criminal liability.

There is also a reasonable argument that the fornication and adultery statutes violate equal protection in that they criminalize behavior for opposite sex couples that is not criminal for same sex couples.  Ironically, Justice O’Connor’s concurring opinion, designed to protect the rights of homosexual couples, could be utilized to protect the rights of opposite sex couples.

My own belief is that the family court’s imposition of restraints against exposing children to a parent’s non-marital sexual relationships has little or nothing to do with a general desire to not expose children to a parent’s illegal conduct (other than sex and drug use is there any criminal conduct the family court routinely worries about children being exposed to?).  Rather, I believe, the courts issues these restraints to impose their own vision of morality, in which any non-marital sexual conduct is immoral, upon all citizens of South Carolina.  However until some intrepid attorney litigates the continued viability of South Carolina’s criminal prohibitions on adultery and fornication we cannot really be certain.

10 thoughts on Overnight non-marital romantic companion restraints after Lawrence v. Texas

  1. Roy Stuckey says:

    Greg, I agree with you, as usual. Your point about the lesbians is valuable. I had not thought of that before.

    It is often difficult to figure out where some laws came from, but in the family court context, the source is often the Bible. While most people agree that you cannot legislate morality, legislators continue trying to do exactly that. I would not be surprised to see legislation proposed in the next session to close the lesbian loophole you pointed out.


  2. Greg, this is not really responsive to your subject but your essay reminded me of a story that older lawyers told on my grandfather, Thomas F. McDow Jr. I never believed it but it was repeated as gospel. When my grandfather appeared before the Supreme Court of South Carolina in 1885 to take the oral bar exam, which was necessary as he “studied law” rather than attending law school, Chief Justice William D. Simpson supposedly asked, “Mr. McDow, what is the difference between fornication and adultery?” My grandfather reputedly responded, “Absolutley none. I have tried them both.”

  3. MJ Goodwin says:

    Another way to look at it would be that the Court is limiting the children’s exposure to potentially harmful and confusing situations in what is already the worst time in their lives. Parents who behave like this are usually pretty selfish. They are not usually putting their children’s best interests first when they hop from marriage to a paramour, with child in tow. Throw the moral issue aside, it’s still bad parenting.

    1. It may be bad parenting when that parent is married to someone else. But I’m yet to be convinced that children are damaged by learning that adults have sex without necessarily being married. Before we accept the court’s blanket prohibition on such exposure, I might suggest that we first develop strong evidence that such exposure is damaging to children.

      As a libertarian, I thought you would agree with this.

  4. StephM says:

    But it’s legal to leave your child unattended in a car? This state and it’s laws (and lack of others) continues to baffle me.

  5. csm says:

    Gary, has this alienation of affection law been updated in SC? Could a jilted spouse sue if they have proof – like a text message that states “she stole me”? Plus other items. And, per your above notes, can the jilted spouse also sue the cheater for their affair in front of the cheater’s child? Curious

  6. Barbara says:

    I am obviously a female and my ex-husband added this to our custody agreement after he re-married. I have sole custody of our child and he has not seen him in over a year. My question is this we’ve been divorced since 2011 and I’ve had sole custody since 2012, how can this actually be fought? I’ve been in a committed relationship for 3 yrs and we’d like to at least spend the night together. My partner and I are very “gun shy” about marriage because of our previous spouse’s and don’t feel it’s right to be “forced” to marry each other just because of a law that has out lived it’s usefulness. I fully understand the concept of the law however, if a parent is willing to have different partners in and out of the home then I don’t feel they would give a rat’s beh

  7. Barbara says:

    … rat’s behind about this law. Sorry my phone decided to post early. Can anyone please give me any direction and/or advice? I’ve spent a lot of money on lawyers to never go to court because they simply say it’s SC law and there’s nothing I can do until said child is 18 or I marry.

  8. Janet says:

    I’d like to know the answer to Barbara’s question from August 2016. It seems south Carolina is in the dark ages. It is unreasonable to force a parent to marry to be able to stay in a long term relationship because the previous spouse wants revenge. Are there any judges in family court who have the common sense to understand that some ex-wives would like to move on with their lives without the moral pinnings of a state that is far behind.

    1. Mike S says:

      I would also like to know a work around for this issue. I am divorced 3 years and living full time with my girlfirend for 2 years who also has a similar aged daughter. I don’t want to sign away another 50% of my assets by getting a marriage license again in the near future. I get every other weekends with my kids but they cannot stay in our home with me because the ex put that clause in our decree and is relentless in her revenge. I have to take my kids camping or sleep in separate houses etc putting us on the street.. you would think it would be ok for the kids to stay with us since we live in the same house for so long. It’s absolutely ridiculous!

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