The Lavender Letter: Applying the Law of Adultery to Same-Sex Couples and Same-Sex Conduct

In this Article, I explore the division in the courts over the question of whether same-sex sexual conduct constitutes adultery in four contexts: (1) criminal adultery prosecutions, (2) fault-based divorce actions, (3) civil tort actions for interference with the marital relationship, and (4) murder cases raising a provocation defense based on a spouse’s act of adultery. In so doing, I arrive at the following conclusions. First, as illustrated in Part I, there is a significant overlap between states that recognize same-sex marriage and states where adulterous conduct is legally relevant, making this more than an interesting theoretical exercise. Second, Part II shows that those decisions holding that same-sex conduct does not constitute adultery do so on the basis of outdated precedents that rely on a gendered concept of adultery that treats sexual dalliances by men and women differently, as well as on heteronormative statutory regimes in which same-sex adultery and opposite-sex adultery were punished differently because all sexual activity between individuals of the same sex was considered unlawful.

Third, Part III demonstrates that the policy arguments in favor of maintaining any of these bases for criminal and civil liability (and there are certainly valid arguments against their maintenance) apply with equal force to same-sex couples and same-sex conduct as they do to heterosexual couples and conduct. And fourth, the same equality principles that have resulted in the extension of the right to marry to same sex-couples likewise require the application of adultery laws and related doctrines to same-sex couples and same-sex conduct. Indeed, a failure to apply them in those contexts devalues same-sex relationships and perpetuates antiquated, negative stereotypes about gay people, as argued in Part IV. As ironic as it seems, despite decades of litigation to get the government out of the bedrooms of gays and lesbians, this Article concludes that principles of equality on the bases of gender and sexual orientation require that the private sexual conduct of gays and lesbians be intruded upon to the same extent as their heterosexual counterparts.