A First Amendment Right to Commit Adultery

A North Carolina court discovered such a thing in Rothrock v. Cooke (N.C. Super. Ct. June 11, 2014).  Mrs. Rothrock had sued her husband's paramour, Miss Cooke, for Alienation of Affection and Criminal Conversation.  Underlying these alliterative "heart balm" torts is the societal sentiment that adultery is wrong and that the victims are entitled to seek redress that is less pointed than bent golf clubs in the front yard, or a smoking .38.

But Judge John O. Craig, III was disdainful of these long-standing common law torts, and dismissed the wife's suit.  His rational for doing so essentially formulates a First Amendment right to break the Seventh Commandment:

AA inherently imposes a chilling effect upon free speech, free association, and expressive conduct within a constitutionally-protected area, or between people with a close familial or amicable relationships.  As for CC, its overly broad reach into constitutionally-protected areas infringes upon the First Amendment's protection of consensual conduct occurring within the private confines of one's home, as well as an individual's right to freely associate with another. 

This particular "association" would be horizontal, apparently.

For Judge Craig, words of seduction directed to another man's wife is protected speech, and so is the adulterous sex act itself, since it is expressive conduct -- it's how we tell one another to have a good day, in the 21st century.

Judge Craig continues his analysis to find "no compelling state interest in protecting the marital relationship" that can justify suppressing this sort of "free speech."  Furthermore:

No substantial, important, or even legitimate state interest exists for punishing affection or intimacy expressed through consensual sexual conduct that takes place in private.

Judge Craig doesn't explain how he determined that protecting the marital relationship is not a legitimate state interest, or whether the people or their representatives get a say in the matter.  It should not be surprising to read such statements in a judicial opinion after the U.S. Supreme Court's ruling in Windsor, although Judge Craig does not cite that ruling, or any other dealing with same-sex marriage, which is indeed a surprise.  He does, however, rely in part upon Lawrence, which invalidated Texas's anti-sodomy law.

In the end, Judge Craig's analysis of North Carolina's "heart balm" statutes diminishes the societal value of marriage.  The state is allowed very little say in what "marriage" is, and after the license issues, the state is to butt out until it's time to divide up the loot and the progeny.  If there are any negative consequences from the dissolution of a marriage, the state must simply look the other way.  The state has no legitimate interest in trying to prevent them.

Judge Craig sums up as follows:

Therefor, AA and CC are unconstitutional violations of the First Amendment's guarantee of free speech, the First Amendment's guaranty of free association, and the Fourteenth Amendment's substantive due process protection of private conduct involving consenting adults, because each claim for relief fails in the face of a strict scrutiny analysis.  

There might be sound policy reasons for a legislature to do away with "heart balm" torts -- most states have already done so.  But for a judge to make what would otherwise be a legislative decision by framing it as a First Amendment issue, is to abase the First Amendment.  If we are to consider any activity that takes place between "consenting adults" in private to be protected speech, then many other laws and civil causes of action must be called into question: tortious interference with contract, prostitution, any and all solicitation crimes, drug laws, antitrust laws, etc.

Again, there might be sound reasons for doing away with all such laws and transitioning towards a purely libertarian landscape, but the First Amendment is not the vehicle for doing so.