August 15, 2006


Little-known law prohibits unwed couples from playing house

By Kris Wise
Charleston Daily Mail

West Virginia is one of only six states where it is still illegal for unmarried couples to live together.

The little known law might soon be facing a court challenge, as it has recently in at least one other state.

The West Virginia chapter of the American Civil Liberties Union is investigating at least one case in which a couple might have been targeted by law enforcement for sharing a household out of wedlock.

"There is some evidence it is being enforced," ACLU director Andrew Schneider said.

Schneider said the ACLU would not release any details about the case until it has more information and decides whether it will try to take legal action to get the law overturned.

He wouldn't say where the issue has reared its head or who has been affected.

"If a court strikes it down here, too, then there will be no need for us to take it to the Legislature," Schneider said. "It's an antiquated law, and I think it's pretty well accepted that it's not illegal."

A court in North Carolina struck down an anti-cohabitation law last month, ruling that it was unconstitutional to restrict two consenting adults from sharing a home.

The case there involved a female employee of a county sheriff's department who was told she would lose her job if she continued sharing a house with her longtime boyfriend.

West Virginia has had a similar law on the books for more than 100 years, although these days it's rarely, if ever, enforced.

The nonprofit group Unmarried America, which provides information for unmarried people, estimates at least 35,000 unmarried couples are living together in West Virginia.

The state's law, as interpreted by the Supreme Court in 1921, applies only to situations where a man and a woman are sharing living quarters out of wedlock. While it seems to exclude same-sex couples, the law technically makes it illegal for any members of the opposite sex to share space, whether they're involved in a sexual relationship or a platonic one.

The law does specify it restricts "lewd and lascivious" association and cohabitation, but it's unclear how those terms are defined today.

Most law enforcement officials have said they can't recall the last time anyone was prosecuted or convicted for violating the law, and Schneider maintains that many lawmakers might not even be aware the law still is in existence.

The law, however, hasn't been relegated to the dustiest section of state code.

As recently as 1990, the state Supreme Court upheld the law after a Kanawha County Circuit Court judge ordered a woman to marry her live-in boyfriend in order to retain custody of her teenage daughter. The woman's ex-husband had taken her to court when he found out he was paying her alimony and child support while she was sharing living expenses with her boyfriend.

The law still is referenced during debates over "common law" marriage, which is not recognized in West Virginia, and about why benefits are unavailable for unmarried couples when one partner either dies or is injured or ill.

The West Virginia Family Foundation, a conservative Christian-based group, is adamant the state should keep the anti-cohabitation law intact.

"We just see this an another attack by the ACLU on the institution of marriage by undermining state laws," said Kevin McCoy, president of the Family Foundation. "It's eroding and removing any laws predicated on traditional values and moral norms."

McCoy said he believes repealing the law would help pave the way for same-sex unions. If the state were to condone cohabitation out of wedlock, he said, it would undermine the importance of recognized marriage.

It's a theme addressed a couple of years ago by conservative state lawmakers, who already secured passage of their "Defense of Marriage Act," a bill that defines marriage as being between a man and a woman.

"While it's really not being enforced, (the anti-cohabitation law) does still send a signal that West Virginia still values cohabitation as being for a man and a woman in a marriage," McCoy said.

Schneider said the law, regardless of how often it's enforced, has to go.

"I don't think it happens very often, but we are investigating a cohabitation case as we speak," Schneider said. "It is a concern for us because we believe the government has no business regulating relationships between two consenting adults in the privacy of their own homes. We have to preserve that right."

According to state law, anyone convicted of cohabitation -- a misdemeanor -- is subject to at least a $50 fine and up to six months in jail.

The Associated Press contributed to this report.