The definitions of adultery and intercourse have to be modified

The legal consequences of same-sex marriage are still working themselves out. Now that sex is not relevant, what constitutes adultery? It is an important issue in some divorce cases.

Last week, in the United States, the New Hampshire Supreme Court unanimously ruled that same-sex extramarital affairs are adulterous.

The case arose in 2019. Robert Blaisdell claimed that because his wife Molly had a sexual relationship with another woman, he was entitled to seek divorce on fault-based grounds. However, a lower court took a narrow view of the law which declared that adultery was “sexual intercourse between persons of the opposite sex”.

But after the 2009 legalisation of same-sex marriage in New Hampshire and the US Supreme Court ruling that such unions were constitutional, the state Supreme Court decided to update the definition.

“It defies logic to suggest that our legislature and the US Supreme Court recognised the rights of same-sex couples to enter into legally valid marriages without also intending that same-sex couples be endowed with all of the responsibilities, protections, and grounds for divorce that are associated with the legal status of marriage,” wrote Justice Patrick Donovan.

Thus, the New Hampshire Supreme Court has redefined adultery as “voluntary sexual intercourse between a married person and someone other than that person’s spouse, regardless of the sex or gender of either person.”

This definition requires some further legal legerdemain in the form of redefining sexual intercourse as “genital contact”.

The implications of developments like this – which are happening in courts across the United States – need to be teased out. For instance adultery used to be defined as “intercourse from which spurious issue may arise.” This suggests that the fundamental issue in marital fidelity used to be protecting the child’s right to know his biological father. But the advent of same-sex marriage leaves children as an optional extra in a romantic union.

Michael Cook is editor of BioEdge

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Michael Cook

Michael Cook edits BioEdge, a bioethics newsletter, and MercatorNet, an on-line magazine whose focus is human dignity. He writes from Sydney, Australia.

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