LEGITIMATE EXPECTATIONS: In the wealth of recent commentary on the Lawrence decision (no, still haven’t read it), the question has come up, if only implicitly, of the status of laws against adultery – Scalia, I think, lists these laws as possible candidates for being struck down, given how they also legislate against a certain form of (supposed) sexual immorality. I’m not interested in whether Scalia is right about this or not, that is, whether given the grounds of the holding in Lawrence, adultery laws are also suspect. I’m interested, rather, in what might distinguish those type of laws from sodomy laws, and whether this makes the case for them stronger or more reasonable.

Nate Oman, in an e-mail, suggested off-handedly (therefore, I’m not ready to attribute what I say to him as his position), that marriage laws create a set of legitimate expectations in each of the parties, which adultery laws help enforce. The model here is to any sort of contract, where the law comes in and enforces the terms of that contract, and makes sure each party follows through on what it’s promised (so the party that’s cheated on doesn’t get played for a sucker). Laws against sodomy aren’t there to uphold a prior contract and to help guarantee that the legitimate expectations of the parties are both met. So there’s at least a prima facie difference between laws against sodomy and laws against adultery.

Is it part of the explicit marriage contract that the two parties be faithful to one another? I don’t know about this. Even if it is, might the parties have some sort of implicit agreement between them about whether they will be truly faithful to their partner? Consider (call this the Clinton model) an arrangement where one partner knows that, given past habits, the other will probably fool around. Nonetheless, the faithful partner implicitly consents to this, in exchange for the other benefits the marriage gives him or her. Or there may be an explicit arrangement the two parties might have between one another for an “open” marriage. Marriage can be a union that is made to secure any number of goods, and sexual fidelity might only be one of them, and not a necessary one, either. To have adultery laws, and to enforce them, is also to enforce the idea that marriage must be a contract that contains a clause mandating sexual fidelity. But this then seems to impose a certain conception of the marriage contact on everybody.

There is also a worry about making adultery a criminal matter, rather than one to be settled by social norms and communal pressure. A community might from on the adulterer, but still leave it open for the injured party to take him or her back. Making adultery criminal makes this possibility much less likely, it seems – the unfaithful partner is now a criminal, rather than someone who has strayed but (with the tacit consent of the community) can make his way back into the good graces of the wronged party. Criminalizing adultery seems to forego the possibility of this complex back and forth that might be negotiated between the couple; instead, it is now made into a legal matter. Even if there are legitimate expectations created by the marriage, and those expectations are disappointed, it might be best not to have the criminal law come in and interpret when this has happened. It might be best left to the parties themselves, along with the communities of which they are members (i.e., church, family, neighborhood).

Perhaps the idea is that we should have adultery laws, to advertise that the state favors sexual fidelity between married partners, but rarely enforce those laws. It’s always chancy to have laws that are meant not to be enforced and only exist for their expressive value: there’s the risk that they will be enforced, but unfairly. But, still, even if we were to have this arrangement, on what grounds would we be justified in having the laws in the first place? Here it’s tempting to return to the idea that marriage creates the legitimate expectation of fidelity for both parties. As I noted above, however, it’s not clear that all parties to marriages have expectations of sexual fidelity, nor is it clear that they ought to. That most marriages might have this expectation doesn’t mean that all marriages should.

If we do think that they ought to, then we seem to be saying that the law should uphold a certain moral conception of marriage, one that has fidelity as a necessary component. And here we risk erasing the distinction between laws against adultery and laws against sodomy. The laws against sodomy, we might say, were justified by the fact that a community thought a certain sexual practice was immoral or unnatural. Now, if we justify the laws against adultery on the grounds that sexual fidelity is a moral good, then we seem to be doing the same thing, i.e., we have a certain moral conception of how parties to a marriage should manage their sexual lives.

None of this should be construed to say that adultery is a good thing or even moral permissible. I’m only raising questions about whether the moral badness of adultery should be backed by a legal sanction against it. In fact, perhaps the considerations above could be interpreted as giving credence to a “untune one string, and hark what discord follows” strategy of argument, along the lines of “look, you thought we could overturn laws against sodomy and just leave it at that. But wait, once you give up the part of sexual morality that made sodomy a bad thing, you seem committed to allowing all these other things, too.”

- posted by Chad @ Saturday, July 12, 2003