Abstract

http://ssrn.com/abstract=1651387
 
 

Footnotes (199)



 


 



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


Peter Nicolas


University of Washington School of Law

July 30, 2010

Florida Law Review, Vol. 63, No. 1, 2011
University of Washington School of Law Research Paper No. 2011-07

Abstract:     
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 limited – 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 legalizing 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 I demonstrate that those decisions holding that same-sex conduct does not constitute adultery do so on the basis of outdated precedents that rely on a gendered concept of adultery that treats sexual dalliances by men and women differently, as well as on heteronormative statutory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. 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.

Number of Pages in PDF File: 32

Keywords: gay, lesbian, homosexual, glbt, lgbt, marriage, adultery, heat-of-passion, criminal conversation, alienation of affections, seduction, breach of promise to marry, same-sex, same-sex marriage, gay marriage, homosexual marriage

Accepted Paper Series


Download This Paper

Date posted: August 2, 2010 ; Last revised: August 21, 2011

Suggested Citation

Nicolas, Peter, The Lavender Letter: Applying the Law of Adultery to Same-Sex Couples and Same-Sex Conduct (July 30, 2010). Florida Law Review, Vol. 63, No. 1, 2011; University of Washington School of Law Research Paper No. 2011-07. Available at SSRN: http://ssrn.com/abstract=1651387

Contact Information

Peter Nicolas (Contact Author)
University of Washington School of Law ( email )
William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States
HOME PAGE: http://www.law.washington.edu/faculty/Nicolas/

Feedback to SSRN


Paper statistics
Abstract Views: 1,364
Downloads: 143
Download Rank: 114,722
Footnotes:  199

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.422 seconds