Column One:
Eye on Unmarried America

December 26, 2005  



Anti-cohabitation laws are unconstitutional

by Thomas F. Coleman

Two years ago the United States Supreme Court invalidated a Texas statute that criminalized private homosexual conduct between consenting adults.  The decision in Lawrence v. Texas declared that the federal Constitution protects a zone of privacy for Americans, whether married or unmarried, which may not be invaded by the government.

While the Texas law was limited to homosexual sodomy, the rationale of the court's opinion should apply equally to laws aimed at heterosexual cohabitation.  Since gays and lesbians have a right of personal privacy, certainly unmarried heterosexuals should also have a constitutional right to intimate association.

Legal scholars and public prosecutors have generally agreed that, in view of the Lawrence decision, criminal laws targeting consensual sodomy in private, whether heterosexual or homosexual, are constitutionally invalid.  But not much has been said about the viability of criminal laws prohibiting "lewd and lascivious cohabitation" between persons of the opposite sex.

Such anti-cohabitation laws are rarely enforced in criminal courts.  Sometimes, however, they are used as a rationale to deny rights to people in a civil context.

Authorities in Virginia, for example, cited that state's anti-cohabitation law to revoke a professional license of the owner of a day care center.  A court in New Mexico relied on such a statute, since repealed by the Legislature, to keep a drunk driving defendant in jail pending trial because if he were released on bail, the man would return home to live with his girlfriend in violation of state law.

A few years back, North Carolina officials refused to grant compensation to unmarried victims of domestic violence on the theory these women were criminals because they were cohabiting with their boyfriends.

Now a Michigan appeals court has relied on that state's anti-cohabitation law as a reason for prohibiting Christian Muller, a divorced father of two children, from having his girlfriend in the house overnight if Muller's kids are present.  As a result, Michelle Moon, who normally lives in the house, now sleeps outside in a van parked in the driveway when Muller's two daughters, ages 5 and 7, come to visit their dad every other weekend.

Muller is asking the Michigan Supreme Court to review the case and to declare the anti-cohabitation law unconstitutional.  Such a ruling would be a logical extension of the United States Supreme Court's decision in Lawrence.

The appeals court in Michigan admitted there was no evidence to show that any harm to the children would occur if Moon were to sleep in the house while they were visiting their father.  The judges simply referred to the anti-cohabitation statute and ruled against the father on that basis alone.

Michigan is one of only seven states prohibiting cohabitation by unmarried opposite-sex couples.  The others are Florida, Mississippi, North Carolina, North Dakota, Virginia and West Virginia.

The situation in these seven states is somewhat bizarre.  In these jurisdictions, homosexual cohabitation is legal but heterosexual cohabitation is not.  As a result, criminal laws cannot be used as a legal basis to prohibit cohabitation by gay parents while children are in their home, but heterosexual parents may have their cohabitation restricted.

Cohabitation is very common in America.  Most adults live together prior to marriage.  Cohabitation has really become part of the marital decision making process for most Americans.

Of the six million cohabiting couples reported by the 2000 Census, about 40 percent are raising children at home.  Each year, more than one-third of all American children are born out of wedlock.

At least 6 percent of Michigan's 2.6 million children live in households where the adults are unmarried, according to Kids Count Databook 2005.

Considering the prevalence of cohabitation, and the constitutional right of privacy, state officials should not interfere with the right of a parent to share a home with an unmarried partner, absent evidence that such a living arrangement is harmful to children in the home.

The Michigan appeals court said that it respected the anti-cohabitation statute and left the statute's fate to the Legislature. 

Don't hold your breath waiting for Michigan politicians to repeal that law anytime soon.  Although an editorial in the Detroit Free Press calls on lawmakers should repeal this statutory relic, efforts to do so have failed in the past due to strong lobbying efforts by religious organizations and conservative political groups.

So it's now up to the Michigan Supreme Court to step in and set the record straight, so to speak.  Since the federal Constitution protects the freedom of intimate association of same-sex couples, it would be logical -- indeed a matter of equal protection of the law -- that heterosexual couples should have the same right to intimacy with their partners.

If a judge is going to restrict the right of parents to have overnight visitors when children are present, the rules should be the same for everyone regardless of sexual orientation.  And the privacy rights of parents should not be restricted absent evidence of harm to the children.

Unmarried America 2005

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.