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Unpublished Paper
The Lavender Letter: Applying the Law of Adultery to Same-Sex Couples and Same-Sex Conduct
ExpressO (2010)
  • Peter Nicolas, University of Washington

In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been sparse—since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship—with the growth in the number of states recognizing same-sex marriage, the question is certain to recur with increased frequency.

In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising a provocation defense based on a spouse’s act of adultery. I demonstrate that those decisions holding that same-sex conduct does not constitute adultery do so by relying on outdated precedents that endorse a gendered concept of adultery that treats sexual dalliances by men and women differently, as well as on heteronormative statutory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. Next, I show that the policy arguments in favor of maintaining any of these bases for criminal and civil liability apply with equal force to same-sex couples and same-sex conduct. Finally, I conclude that 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, and indeed that a failure to apply them in those contexts devalues same-sex relationships and perpetuates antiquated, negative stereotypes about gay people.

  • adultery,
  • same-sex,
  • gay,
  • homosexual,
  • same-sex marriage,
  • gay marriage,
  • homosexual marriage,
  • alienation of affections,
  • criminal conversation,
  • breach of promise to marry,
  • fault-based divorce,
  • glbt,
  • lgbt,
  • ecclesiastical,
  • canon law,
  • common law,
  • seduction,
  • gender,
  • sexual orientation,
  • gender discrimination
Publication Date
August 2, 2010
Citation Information
Peter Nicolas. "The Lavender Letter: Applying the Law of Adultery to Same-Sex Couples and Same-Sex Conduct" ExpressO (2010)
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