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

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there’s strong argument that these criminal codes upon which the family court justifies these restraints are no longer valid.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.

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