N.H. High Court Says Gay Sex Not Adultery
Associated Press, November 7, 2003
By Anne Saunders, Associated Press Writer
CONCORD, N.H.—If a married woman has sex with
another woman, is that adultery? The New Hampshire Supreme Court, ruling in a
divorce case, says no.
The court was asked to review a case in which a husband accused his wife of
adultery after she had a sexual relationship with another woman. Robin Mayer
of Brownsville, Vt., was named in the divorce proceedings of David and Sian
Blanchflower of Hanover.
A Family Court judge decided Mayer and Sian Blanchflower’s relationship
did constitute adultery, but Mayer appealed to the Supreme Court, arguing that
gay sex is not adultery under New Hampshire divorce law.
Three of the five justices agreed. Two others—generally considered the
court’s more conservative members—did not.
Part of the problem in New Hampshire is that adultery is not defined in the
state’s divorce laws. So the court looked up “adultery” in Webster’s
dictionary and found that it mentions intercourse. And it found an 1878 case
that referred to adultery as “intercourse from which spurious issue may
arise.”
Other states, including Georgia, Florida and South Carolina, have defined
adultery in broader terms—beyond intercourse—to include gay sex.
“I think the majority opinion is unintentionally trivializing same-sex
relations and violating modern notions of the sanctity of marriage,” said
Marcus Hurn, a professor at Franklin Pierce Law Center.
A sexual relationship, whether heterosexual or homosexual, is “exactly an
equivalent betrayal and that, I think, is the ordinary meaning most people
would give.”
But the majority did not want the New Hampshire courts to step onto the
slippery slope of defining which sex acts outside of intercourse might amount
to adultery.
“This standard would permit a hundred different judges ... to decide just
what individual acts are so sexually intimate as to meet the definition,”
the court said.
The dissenters said adultery should be defined more broadly to include
other intimate extramarital sexual activity.
A relationship is adulterous “because it occurs outside of marriage and
involves intimate sexual activity, not because it involves only one particular
sex act,” said Chief Justice David Brock and Justice John Broderick.
David Blanchflower had no comment on the ruling. Sian Blanchflower and
Mayer did not immediately return calls for comment.
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