Column One:
Eye on Unmarried America

March 05,  2007  



North Dakota leaves privacy invaders list

By Thomas F. Coleman

The North Dakota Legislature gave final approval last week to a bill that would repeal a law criminalizing cohabitation by unmarried couples of the opposite sex. 

A spokesperson for Governor John Hoeven said he will sign the bill when it reaches his desk.  When that happens, the list of states which invade the sexual privacy of consenting adults will be reduced by one.

Six states besides North Dakota currently make unmarried cohabitation a crime.  They include Florida, Michigan, Mississippi, North Carolina, Virginia, and West Virginia.

Seven states make it a crime for an unmarried man and woman to engage in consensual intercourse in private.  Idaho, Massachusetts, Minnesota, South Carolina, Utah, Virginia, and West Virginia, fall into this category. 

In the District of Columbia, homosexual sex is legal but heterosexual intercourse remains a crime.

A decision by the United States Supreme Court in 2003 has placed a cloud of unconstitutionality over all of these privacy-invading criminal statutes.  In striking down a Texas sodomy law, the court declared that states must give unmarried persons the same respect for privacy as they do to married couples.

Despite this pronouncement from the nation's highest court, legislatures in states with laws against fornication or cohabitation have been reluctant to repeal them.  For example, attempts to get rid of the North Dakota law failed in the previous two legislative sessions.

The 2000 Census reported that nearly 22,000 residents of North Dakota were living with an unmarried partner. 

"I don't think it's any of my business whether my neighbors have a marriage certificate or not,"  Senator Tracy Potter, sponsor of the repeal bill, told the Bismarck Tribune.   "I certainly don't think the government has any role in regulating that type of morality."

Legislators who opposed the repeal said it was the state's duty to set high moral standards.  They claimed that since these laws are not enforced, it is a matter of symbolism.

Some residents of North Dakota and other states which criminalize consenting adult behavior would have reason to dispute the notion that such laws are purely symbolic.

One such example was recalled by Representative Louise Potter in an interview she had with the Associated Press.  Potter remembered when her elderly mother-in-law and a longtime partner wanted to move from Florida to a senior home in Grand Forks, North Dakota a few years ago. They were not allowed to move in because they weren't married, Potter said.

Anti-cohabitation laws have been used as an excuse to discriminate against unmarried Americans in other situations as well.

An appeals court in Michigan once referred to that state's cohabitation crime as a reason to deny fair housing rights to unmarried couples.  Another Michigan court made reference to the same statute in a decision forbidding the unmarried partner of a single dad from staying overnight when his kids from a previous marriage were present in the home.

Several years ago, when cohabitation was a crime in New Mexico, a judge denied bail to a misdemeanor defendant because he intended to live with his girlfriend upon release.  Law enforcement jobs were denied to people in Arizona who were cohabiting.

Lawmakers in Arizona and New Mexico voted to decriminalize cohabitation in 2001.

Darlene Davis felt the sting of Virginia's anti-cohabitation law about six years ago when the state threatened to revoke her day care license.  Davis, then 61, had been caring for children in her home for 16 years and had rave reviews from the parents who had hired her.

After the ACLU threatened to file a lawsuit, the state backed down and Davis was allowed to keep her license.

For many years, North Carolina refused to give women financial assistance from the state's victim compensation fund if they were battered by a live-in boyfriend.  Why? Because the women were "criminals."

Some federal taxpayers have also felt the brunt of these criminal statutes.  Federal law prohibits a taxpayer from claiming someone as a dependent if the relationship between the taxpayer and dependent violates local law. 

Let's hope that the remaining states on the privacy invader list notice what North Dakota has done.  With a little push from civil liberties groups, it shouldn't be long until all states respect the privacy rights of consenting adults.

To read other editions of Column One, click here.

Unmarried America 2007

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 America. E-mail: Unmarried America is a nonprofit information service for unmarried employees, consumers, taxpayers, and voters.