U.S. News

04.20.14

Our Dumb Puritan Laws: Sex Bans and Illegal Adultery

New Hampshire and Louisiana lawmakers got all hot and heavy over sex laws this week — was it as good for you as it was for them?

When I heard Mickey Rooney had died last week, naturally I wondered: Mickey Rooney was still alive? Likewise, when I heard this week that New Hampshire repealed its longstanding law against committing adultery, I had a similar thought: It was against the law to commit adultery in New Hampshire?  Honestly I didn't know. Immoral, perhaps. Unwise, certainly. But illegal? (And for that matter, what would the dearly departed Mickey Rooney think about it? More on that later.)

Oh, I was well aware that dozens of outdated—and to some archaic—laws about sexual peccadillos remain on the books throughout the country, firmly entrenched throughout the sexual/stupid spectrum. Virginia is still considering a revival of its anti-sodomy law, a year after it was officially struck down by an appeals court. More than a quarter of states still have laws that outlaw sex between gay Americans; nine other states prohibit oral or anal sex between anyone.  In Washington State, anyone who picks up a hitchhiking sex worker can have his car confiscated. In Oregon, public restrooms can only be so public; two people must never use the same stall. And never mind quartering soldiers; Arizonans can't shelter two vibrators in the same house.

But a law against adultery, in—of all places—the "Live Free or Die" State?

It’s time to do the right thing about the ways we do our wrong things.

Perhaps I shouldn't be surprised. New Hampshire, after all, is the home of a law prohibiting the hanging of lingerie on a clothesline near an airport. (Could it be I've found a clue to the disappearance of Malaysian Flight 370?  Tune in to CNN to find out!) Until its reversal, New Hampshire was just one of almosthalf of American of states where adultery remains a criminal offense. Until recently, Colorado even made it illegal to rent out a bed to those hoping to commit adultery at a No-Tell Motel—or "aiding and a-bed-ing" a criminal, if you will.  (Here's to hoping it's not illegal to make a terrible sex-related pun.) Punishments vary widely: If you cheat in Maryland, you may be required to hand over a $10 fine; if you do so in Michigan, be prepared to spend the rest of your days in jail: adultery there carries the possibility of a life sentence.

But if Granite Staters are desperately seeking proof of their still-scandalous, downright depraved sex lives, they only have to peek across their border to see what the Bay Staters are up to. True, the last conviction for adultery in Massachusetts—where the Pilgrims landed and puritans were at their most puritanical—was over 30 years ago, but that decision (in Commonwealth vs. Judith Stowell) came with a declaration: that making adultery a crime "is not unconstitutional on its face." Nor does it impinge on "the fundamental right of privacy guaranteed by the United States Constitution." So if you have extramarital sex in Massachusetts—even in 2014—you could be sentenced to three years in prison, where, most likely, extramarital sex is the only sex you’ll be having.

Perhaps that's the cue taken by the Louisiana House of Representatives on Tuesday, when it voted overwhelmingly—by a margin of almost three-to-one—to keep a law banning "crimes against nature"—a list which includes, as that esteemed legislative body saw it, oral sex. Now, I don't know how many people have been caught having oral sex in Louisiana—I've never even been to Mardi Gras—but I have to assume its penitentiaries aren't crowded with such hardened criminals. 

And yet Louisiana does not prohibit a far stranger peccadillo: sex with corpses. That's the balanced position Louisianan legislators have carved out over the years: necrophilia is legal; oral sex is illegal. What does one say to such a distinction? Where does one begin? How does one—ahem—wrap their head around that? If there's no accounting for taste, there's no accounting for tastelessness, certainly.

It's fine, we're told. Don't worry about it. These laws are unenforceable anyhow, and have been for over 10 years, ever since the Supreme Court ruled (in Lawrence v. Texas) that laws which criminalize private consensual sexual behavior are unconstitutional. Just a few years ago, even the governor of South Carolina got away with murder (well, adultery) because laws against adultery in his state gave him quite a bit of, well, wiggle room. When Mark Sanford put his South Carolina paws on the Georgia peaches of someone other than his wife, he wasn't prosecuted because adultery in that state, among those who do not live together, is defined as "habitual carnal intercourse"—which is difficult to prove, even when you're doing it right.

Not to be a stickler, but if the United States Supreme Court says these laws are unconstitutional, doesn't that suggest the 67 Louisianan legislators who voted against the repeal of the oral sex violated their sworn oath to support the Constitution? And isn't that a bigger crime than either adultery or oral sex? If we submit to being a nation of laws because we like to think of ourselves as something other than a nation of lawbreakers, shouldn't we protect these legislators against themselves, and clean up all the silly sex laws still soiling the books?

For all I know, it’s what Mickey Rooney might have wanted. Before he died—you were aware he had died, right?—he was married eight times. I don't know if any of his wives divorced him because of his adultery or because he would have been considered a criminal in New Hampshire (a stretch, perhaps, but it's conceivable, just by the numbers—the guy was married eight times). But the mere possibility indicates it's time to act. It’s time to do the right thing about the ways we do our wrong things.

If not for posterity, if not for the defense of the United States Constitution, then do it for Mickey.