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How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence

43 Pages Posted: 22 Oct 2010  

Andrew Darion Cohen

Fordham University School of Law

Date Written: November 1, 2010

Abstract

Criminal adultery bans, despite widespread transgression and lax enforcement, remain on the books in a substantial minority of states. The landmark Lawrence v. Texas decision casts doubt on all state interference with consensual sexual activity among adults, including adultery bans. Additionally, adultery bans on their face implicate the Establishment Clause, due to adultery bans’ and marriage’s roots in religious doctrine and religiosity. This Note examines the constitutionality of adultery bans after Lawrence v. Texas, and proposes a novel approach to substantive due process analysis that applies Establishment Clause values. In proposing what this Note dubs the “Establishment Clause prism,” through which a facially legitimate state interest is delegitimized if substantially motivated by religious forces, this Note concludes that adultery bans are unconstitutional.

Keywords: Establishment Clause, Substantive Due Process, Adultery, Marriage, Religion, Morality, Lawrence v. Texas

JEL Classification: K14, K42

Suggested Citation

Cohen, Andrew Darion, How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence (November 1, 2010). Fordham Law Review, Vol. 79, 2010. Available at SSRN: https://ssrn.com/abstract=1695272

Andrew Darion Cohen (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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