Column One:
Eye on Unmarried America

July 24,  2006  



Anti-cohabitation law bites the dust

By Thomas F. Coleman

For more than 200 years, unmarried couples living in North Carolina have been considered criminals by the state's penal code.  The criminal stigma was lifted last week by a court ruling which declared the anti-cohabitation law to be unconstitutional.

For State Superior Court Judge Benjamin Alford, the decision was almost a no-brainer in view of a privacy decision issued by the United States Supreme Court a few years ago.  In Lawrence v. Texas, the nation's highest court declared a Texas sodomy law unconstitutional because it criminalized the private homosexual conduct of consenting adults.

It was not much of a leap in logic for Alford to conclude that if gays and lesbians have a constitutional right to intimate association, then unmarried heterosexual adults must have a similar right to live together in a sexual relationship.

The North Carolina case was initiated by the American Civil Liberties Union on behalf of Deborah Hobbs, a former employee of the Pender County Sheriff's Department.  Hobbs quit her job after her boss found out that she had been living with her boyfriend.  Hobbs was ordered to get married, move out, or find another job.

Hobbs resigned and then filed a lawsuit to challenge the antiquated anti-cohabitation law. 

In my Column One commentary for December 26, 2005, I argued that the North Carolina anti-cohabitation law, and similar laws in several other states, were patently unconstitutional in the wake of the United States Supreme Court ruling in the Lawrence case.  (Anti-cohabitation laws are unconstitutional.)

Even though such laws are seldom enforced in a criminal court, they have been used in a variety of other legal contexts to the disadvantage of unmarried Americans living in states with anti-cohabitation statutes on the books.  Although lawmakers in New Mexico and Arizona repealed such laws several years ago, North Carolina, Virginia, West Virginia, Florida, Michigan, Mississippi and North Dakota still criminalize unmarried cohabitation.

For many years, North Carolina's Victim Compensation Fund labeled cohabiting victims of domestic violence to be criminals who, as such, were denied financial assistance after they were battered by their live-in boyfriends. 

Judges in Michigan and other states with anti-cohabitation laws have denied custody or visitation rights to unmarried parents if they were cohabiting outside of wedlock. 

Employment rights have also been affected.  I recall, for example, when some 15 years ago Debbie Deem wrote to me about her situation in Arizona.  She has applied for a position as a juvenile probation officer, a position for which she was well qualified.

The probation department refused to interview her for the job when supervisors found out that she was living with her boyfriend.  Arizona then had a criminal statute against unmarried cohabitation. 

It took Debbie and others more than 10 years of lobbying until they convinced the Arizona Legislature to repeal that law.  In the meantime, she had moved to California where she drove around with a bumper sticker on her car which boldly declared: "Refugee from Arizona Laws."

Unmarried couples have been denied housing protection too.  A Michigan Court of Appeal, for example, declared that the Michigan Legislature could not have intended to prohibit housing discrimination against unmarried couples, noting that such couples have been branded as criminals by the state's anti-cohabitation law.

More than 1.6 million Americans are considered criminals for living with an unmarried opposite-sex partner.  These "criminals" live in Florida (370,000 unmarried couples), Michigan (202,000), Mississippi (47,000), North Carolina (144,000), North Dakota (11,000), Virginia (126,000), and West Virginia (35,000).

Millions of other sexually active adults live in jurisdictions --  District of Columbia, Idaho, Massachusetts, Minnesota, South Carolina, and Utah -- which criminalize fornication, otherwise known as consensual sexual intercourse.  The Supreme Court of Virginia declared that state's fornication law unconstitutional last year.

For the past decade, the ACLU has been leading the charge to get these antiquated privacy-invading laws declared invalid.  Three years ago, the civil liberties group won a case in the Georgia Supreme Court declaring the fornication law in that state unconstitutional.

The Georgia court unanimously concluded that Georgia's Constitution does not permit the government to "reach into the bedroom of a private residence and criminalize the private, noncommercial, consensual acts of two persons legally capable of consenting" to sexual activity.

When the Georgia Supreme Court rules unanimously in favor of the privacy rights of consenting adults, can anyone seriously expect the fornication and anti-cohabitation laws remaining on the books in other states to survive much longer?

The ACLU's resolve to challenge these laws, and last week's court ruling in North Carolina suggest that the answer to that question should be a resounding NO.

Unmarried America 2006

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.