|For more than 200 years,
unmarried couples living in North Carolina have been considered
criminals by the state's penal code. The criminal stigma
was lifted last week by a court ruling which declared the
anti-cohabitation law to be unconstitutional.|
For State Superior Court Judge
Benjamin Alford, the decision was almost a no-brainer in view of
a privacy decision issued by the United States Supreme Court a
few years ago. In Lawrence v. Texas, the nation's
highest court declared a Texas sodomy law unconstitutional
because it criminalized the private homosexual conduct of consenting
It was not much of a leap in
logic for Alford to conclude that if gays and lesbians have a
constitutional right to intimate association, then unmarried
heterosexual adults must have a similar right to live together
in a sexual relationship.
The North Carolina case was
initiated by the American Civil Liberties Union on behalf of
Deborah Hobbs, a former employee of the Pender County Sheriff's
Department. Hobbs quit her job after her boss found out
that she had been living with her boyfriend. Hobbs was
ordered to get married, move out, or find another job.
Hobbs resigned and then filed a
lawsuit to challenge the antiquated anti-cohabitation law.
In my Column One commentary for
December 26, 2005, I argued that the North Carolina
anti-cohabitation law, and similar laws in several other states,
were patently unconstitutional in the wake of the United States
Supreme Court ruling in the Lawrence case.
(Anti-cohabitation laws are unconstitutional.)
Even though such laws are seldom
enforced in a criminal court, they have been used in a variety
of other legal contexts to the disadvantage of unmarried
Americans living in states with anti-cohabitation statutes on
the books. Although lawmakers in New Mexico and Arizona
repealed such laws several years ago, North Carolina,
Virginia, Florida, Michigan, Mississippi and North Dakota still
criminalize unmarried cohabitation.
For many years, North Carolina's
Victim Compensation Fund labeled cohabiting victims of domestic
violence to be criminals who, as such, were denied financial
assistance after they were battered by their live-in boyfriends.
Judges in Michigan and other
states with anti-cohabitation laws have denied custody or
visitation rights to unmarried parents if they were cohabiting
outside of wedlock.
Employment rights have also been
affected. I recall, for example, when some 15 years ago
Debbie Deem wrote to me about her situation in Arizona.
She has applied for a position as a juvenile probation officer,
a position for which she was well qualified.
The probation department refused
to interview her for the job when supervisors found out that she
was living with her boyfriend. Arizona then had a criminal
statute against unmarried cohabitation.
It took Debbie and others more
than 10 years of lobbying until they convinced the Arizona
Legislature to repeal that law. In the meantime, she had
moved to California where she drove around with a bumper sticker
on her car which boldly declared: "Refugee from Arizona Laws."
Unmarried couples have been
denied housing protection too. A Michigan Court of Appeal,
for example, declared that the Michigan Legislature could not
have intended to prohibit housing discrimination against
unmarried couples, noting that such couples have been branded as
criminals by the state's anti-cohabitation law.
More than 1.6 million Americans
are considered criminals for living with an unmarried
opposite-sex partner. These "criminals" live in Florida
(370,000 unmarried couples), Michigan (202,000), Mississippi
(47,000), North Carolina (144,000), North Dakota
(11,000), Virginia (126,000), and West Virginia
Millions of other sexually active
adults live in jurisdictions -- District of Columbia,
Idaho, Massachusetts, Minnesota, South Carolina, and Utah --
which criminalize fornication, otherwise known as consensual
sexual intercourse. The Supreme Court of Virginia declared
that state's fornication law unconstitutional last year.
For the past decade, the ACLU has
been leading the charge to get these antiquated privacy-invading
laws declared invalid. Three years ago, the civil
liberties group won a case in the Georgia Supreme Court
declaring the fornication law in that state unconstitutional.
The Georgia court unanimously
concluded that Georgia's Constitution does not permit the
government to "reach into the bedroom of a private residence and
criminalize the private, noncommercial, consensual acts of two
persons legally capable of consenting" to sexual activity.
When the Georgia Supreme Court
rules unanimously in favor of the privacy rights of consenting
adults, can anyone seriously expect the fornication and
anti-cohabitation laws remaining on the books in other states to
survive much longer?
The ACLU's resolve to challenge
these laws, and last week's court ruling in North Carolina
suggest that the answer to that question should be a resounding
Unmarried America 2006
Thomas F. Coleman, Executive Director of Unmarried America, is an
attorney with 33 years of experience in singles' rights, family
diversity, domestic partner benefits, and marital status discrimination.
Each week he adds a new commentary to Column One: Eye on Unmarried
email@example.com. Unmarried America is a nonprofit
information service for unmarried employees, consumers, taxpayers, and