Court Considers Gay Adultery Case
The
Advocate, April 23, 2003
The New Hampshire supreme court will soon review a
Lebanon, N.H., family court case that raises the question of whether an
extramarital affair between people of the same sex qualifies as adultery under
the state’s divorce laws. Robin Mayer, a lesbian from Brownsville, Vt., has
asked the high court to rule that only sexual intercourse between
heterosexuals can constitute adultery—and not sexual relations between
people of the same sex. That may seem an unusual position for an openly gay
person to take, but Mayer says that the laws of New Hampshire are biased
against gay people.
Mayer was named as the third party in the divorce
proceedings of David and Sian Blanchflower of Hanover after David Blanchflower
accused his wife of having an “adulterous” relationship with Mayer.
Mayer is trying to use what she sees as a defect in the
law to her advantage: She seeks to extricate herself from a bitter divorce
case on the grounds that New Hampshire’s antiquated divorce statute
doesn’t allow a wife to be accused of committing adultery with another
woman.
Adultery is one of a handful of “faults” for which a
New Hampshire court can grant a divorce, in addition to the no-fault ground of
irreconcilable differences. Any finding that one spouse was at fault in the
breakup of the marriage can disadvantage that spouse in the division of
marital assets.
Mayer appealed to the state supreme court after Lebanon
family court justice John Peter Cyr ruled that the legal definition of
adultery should encompass same-sex sexual relations. “The Lebanon family
court is attempting to overturn several centuries of the accepted definition
of adultery, which is heterosexual sexual intercourse,” wrote Mayer, who is
representing herself in the appeal.
Other states have redefined adultery to include
homosexual sex, such as Georgia and Florida. A New Jersey court said that
adultery occurs when a spouse engages in a “personal, intimate sexual
relationship with any other person, irrespective of the specific sexual acts
performed, the marital status, or the gender of the third party.”
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