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By Richard Nadler
7-15-03
The June 26 U.S.
Supreme Court decision that posited consensual sodomy as a constitutionally
protected right was not an isolated event. It was predicated on a decades-long
assault by liberal jurists on anti-adultery statutes and torts — an assault
that decriminalized and destigmatized Bible-based laws restricting heterosexual
activity.
Missouri provides a
recent example. "Alienation of affection" is a common law tort that can be
brought against the seducer of a married individual, male or female, by the
wronged spouse on the basis of sexual and/or material loss. On June 17, 2003,
in Helsel v. Noellsch, Missouri became the 39th state to abolish it.
No one blinked.
Adultery had already been decriminalized in Missouri by a 1979 act of the
legislature. In 1994, the state supreme court uprooted the tort of "criminal
conversation," a civil action based on proven adultery.
Indeed, the only
uncommon feature of this breach with common law was the manner of its making.
Thirty-three other states had repealed "alienation of affection" by statute. In
Missouri, it fell to a 5-to-2 majority of the state supreme court.
Speaking for the
majority, Judge Richard Teitelman posited two reasons for insulating
marriage-breakers from civil actions: first, that such actions were premised on
barbaric assumptions insulting to women; and second, that consistency demanded
it.
According to Judge
Teitelman, alienation of affection is "inextricably bound" to antiquated
property concepts. In order to ensure pure bloodlines and discourage adultery,"
he wrote,
“the early Germanic
tribes provided that men were entitled to payment from the wife's lover so that
the husband could purchase a new spouse… As successors to the Germanic
tradition, the Anglo-Saxons also provided a cause of action for men to recover
for another's interference with the marital relationship…
“The original
justification for the tort of alienation of affection lies in the antiquated
concept that husbands had a proprietary interest in the person and services of
wives.”
But the American
legislatures that established this cause of action, starting with New York in
1864, were peopled not by Druids, but by Christians. And the concept they
adopted was Mosaic, not Germanic. Jewish law assumes marital obligations
defined by, but not limited to, property and service. And this law posits
property and service requirements on both male and female. The husband must
provide his wife food, clothing, and marital relations. A Ketuba, or marriage
contract, can specify property rights in addition to these.
Nor was the husband
his wife's slaveholder under English Christian law. Under the Married Women's
Property Acts, a wronged wife could bring actions against a seductress who
impaired her rights under the marriage contract.
The case facts in
Helsel v. Noellsch blur Judge Teitleman’s historic rationale for its overturn.
Katherine Helsel, a wife and mother, brought suit against Sivi Noellsch, her
husband's physical therapist, for "alienation of affections." Noellsch's
liaison with David, Katherine's husband, included dating, gifts, sex, and
constant surreptitious communications. The romance bloomed while Mrs. Helsel
was bearing her husband's second child. David announced his intention to
divorce her within days of that child's birth.
He subsequently
married Sivi.
A jury, hearing the
evidence, awarded Katherine Helsel actual damages of $50,000 and punitive
damages of $25,000.
By overturning this
verdict, and its cause, Judge Teitleman “protected” a married woman from
chattel status by denying her a quantifiable claim against an assault on her
marriage.
Not all states have
rushed to overturn tradition. The supreme court of Mississippi upheld the same
tort. Its majority wrote, “[A spouse] is entitled to society, companionship,
love, affection, aid, services, support, sexual relations and the comfort of
her husband as special rights and duties growing out of the marriage covenant.
To these may be added the right to live together in the same house, to eat at
the same table, and to participate together in the activities, duties and
responsibilities necessary to make a home… To abolish the tort of alienation of
affections would, in essence, send the message that we are devaluing the
marriage relationship.”
Katherine Helsel’s
attorney, Craig Ritchie, argued that “alienation of affections” provides a
monetary disincentive to adulterous behavior, while its removal eliminates the
last cause of action against a third party who “wrongfully interferes in a
marital relationship.”
Judge Duane Benton
penned the dissent in the June 17 Missouri decision. The common law, he
observed, continues to acknowledge interference with marital consortium as a
cause of action by a spouse suffering the loss. If work-based negligence denied
a wife the affections of her husband, a tort could proceed. “In alienation of
affection,” Benton wrote, “a defendant’s intentional conduct causes the
loss… It is inconsistent that the law compensates for negligent conduct causing
a loss of consortium, but (after this opinion) does not compensate for
intentional conduct causing the same loss.”
In other words, a
marriage-breaker now enjoys special immunity from civil prosecution when a
marriage contract is impaired. Consensual sex trumps traditional boundaries.
This was the
consistency for which Judge Teitleman pleaded. “If a spouse cannot recover
because of an adulterous affair under a criminal conversation theory, “ he
wrote, “a spouse should likewise be barred from recovery by simply attaching
the moniker of ‘alienation of affection’ to the petition.”
And there is little
doubt that consistent hostility to Judaic and Christian concepts of marriage
excludes the criminalization of adulterous behavior, non-marital sex, and/or
consensual sodomy.
“Over time,” wrote
Dennis Owens, attorney for defendant Sivi Noellsch, “the courts and society in
general have increasingly recognized that individual consent is central to the
contemporary marital relationship — not only to its creation, but to its
maintenance as well. Increasingly, there is both implicit and explicit
recognition in the law that marital partners are individuals, each with a
separate intellectual and emotional makeup. To allow recovery against a third
party for loss of a spouse’s affections now runs counter to the central
principles in our modern legal system that recognize individual autonomy.”
This primacy of
“individual autonomy” over marriage banishes not just the Druids, whose effect
on American law was minimal, but the Jews and Christians, who regard adultery
as a punishable sin, and marriage as a contract before God involving property
and services.
— Richard Nadler is editor of KC Jones Monthly, a
Midwestern journal of opinion.
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