Married women are free to have extramarital sexual relations with other women, says the New Hampshire Supreme Court, without being at fault for the break-up of their marriage.
In a 3-2 ruling handed down today, the jurists decided the definition of adultery doesn’t include homosexual sex, but requires heterosexual intercourse to have taken place.
The decision comes in a contentious divorce case.
David Blanchflower, of Hanover, N.H., originally filed for divorce from his wife, Sian, on grounds of irreconcilable differences. He then amended his petition, asserting his wife’s “continuing adulterous affair” with Robin Mayer, a woman from Brownsville, Vt., caused the irreparable breakdown of their marriage.
An “at fault” finding benefits the husband in the division of the couple’s property.
The two women attempted to block his efforts, contending a homosexual relationship between two people, one of whom is married, does not constitute adultery according to state divorce law.
The trial court disagreed with the women’s argument and ruled in favor of the husband, prompting Mayor to pursue the issue with the state’s high court.
In rendering their decision, the justices found the outdated law didn’t define adultery. In the absence of necessary definitions, they explained in their opinion, they must “ascribe to them their plain and ordinary meanings.”
In other words, they looked the word up in Webster’s Third New International Dictionary and found the word defined as involving intercourse between members of opposite genders.
The justices further relied on case law from the period during which the 1842 divorce statute was drafted and concluded the definition of adultery as it was applied in State v. Wallace in 1838 and State v. Taylor in 1878 was “intercourse from which a spurious issue may arise.” They deduced that because a “spurious issue” can only arise from intercourse between a man and a woman, “criminal adultery could only be committed with a person of the opposite gender.”
In their dissenting opinions, two justices wrote: “We respectfully dissent because we believe that the majority’s narrow construction of the word ‘adultery’ contravenes the legislature’s intended purpose in sanctioning fault-based divorce for the protection of the injured spouse. To strictly adhere to the primary definition of adultery in the 1961 edition of Webster’s Third New International Dictionary and a corollary definition of sexual intercourse, which on its face does not require coitus, is to avert one’s eyes from the sexual realities of our world.”
Court observers agreed with the dissenters.
“I think the majority opinion is unintentionally trivializing same-sex relations and violating modern notions of the sanctity of marriage,” Marcus Hurn, a professor at Franklin Pierce Law Center, told the Associated Press.
A sexual relationship, whether heterosexual or homosexual, he added, is “exactly an equivalent betrayal.”
“That, I think, is the ordinary meaning most people would give,” said Hurn.
Neither David Blanchflower, his wife nor Mayer commented following the ruling.
In an effort to thwart efforts to pull them into the burgeoning debate over homosexual “marriage,” the justices stressed the appeal was “not about the status of homosexual relationships in our society or the formal recognition of homosexual unions.”