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Shacking Up: N.C. Anti-Cohabitation Law Under Legal Attack

James Joyner
4

North Carolina’s law making it a criminal offense for unmarried couples to cohabitate is under challenge by the ACLU.

Shacking Up: N.C. Anti-Cohabitation Law Under Legal Attack (AP)

There are some 144,000 unmarried couples living together in North Carolina, and they are all breaking the law – a statute that has been on the books since 1805. The law against cohabitation is rarely enforced. But now the American Civil Liberties Union is suing to overturn it altogether, on behalf of a former sheriff’s dispatcher who says she had to quit her job because she wouldn’t marry her live-in boyfriend.

[…]

Rudinger and other legal experts believe a 2003 U.S. Supreme Court ruling striking down a Texas anti-sodomy law may undermine the basis for North Carolina’s cohabitation law, which carries a fine of up to $1,000 and up to 60 days in jail.
Arnold Loewy, a law professor at the University of North Carolina at Chapel Hill, said the ACLU lawsuit is almost certain to succeed. If the high court’s decision in Lawrence v. Texas protects consensual sex among adults, “it’s hard to understand any serious argument that it would not include” the right to live together, he said.

North Carolina is one of seven states that still have laws on the books prohibiting cohabitation of unmarried couples. The others are Virginia, West Virginia, Florida, Michigan, Mississippi and North Dakota. North Carolina appears to be the only state where the law is being challenged.

The Virginia Supreme Court in January responded to the Lawrence v. Texas decision by striking down that state’s rarely enforced state law prohibiting sex between unmarried people. But a Virginia law against cohabitation remains on the books.

In January, the North Dakota House defeated a challenge to its cohabitation law on a 52-37 vote.

There were roughly three dozen cohabitation-related charges filed in North Carolina between 1997 and 2004, according to state figures. But the number of people actually convicted under the law – formally known as the fornication and adultery statute – is not clear, said Patrick Tamer, a statistician with the North Carolina court system. At least one judge, U.S. Magistrate Carl Horn in Charlotte, regularly asks defendants whether their living arrangements violate the cohabitation ban. Horn, who declined to be interviewed for this story, has refused to release violators unless they promise to comply.

Amazing. Loewy is almost certainly correct that, in light of Lawrence and a whole string of “privacy” rulings over the past forty years, the Supreme Court would strike these laws down as unconstitutional.

In reality, of course, nothing in the U.S. Constitution prevents states from passing and enforcing asinine laws such as this one. They’re horrible public policy, for a variety of reasons, but perfectly within the scope of state Reserved powers.

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4 responses to “Shacking Up: N.C. Anti-Cohabitation Law Under Legal Attack”

  1. Tim Avatar
    Tim

    Interestingly enough, the South Carolina House of Representatives just passed a bill prohibiting the recognition of common law marriage. I happened to sit in some of the debate, and the impetus seemed to be from probate judges who don’t like dealing with the issue in settling estates.

  2. Alex Knapp Avatar
    Alex Knapp

    What about the Ninth Amendment?

  3. Anderson Avatar
    Anderson

    “What about the Ninth Amendment?” will be the reply. Remember, it doesn’t actually say anything; it’s just an inkblot, according to legal genius Robert Bork.

  4. James Joyner Avatar
    James Joyner

    The 9th was not designed to create positive rights against the states but rather to preclude the impression that the listing of explicit protections against the Federal government was exhaustive.

    From FindLaw’s Annotations to the 9th:

    “Rights Retained by the People

    Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. 1 Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ”It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.” 2 It is clear from its text and from Madison’s statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. 3 Recently, however, the Amendment has been construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.

    The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court 4 until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut. 5 There a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the Court, asserted that the ”specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” 6 Thus, while privacy is nowhere mentioned, it is one of the values served and protected by the First Amendment, through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.

    ”The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.” 7 While, therefore, neither opinion sought to make of the Ninth Amendment a substantive source of constitutional guarantees, both did read it as indicating a function of the courts to interpose a veto with regard to legislative and executive efforts to abridge other fundamental rights. In this case, both opinions seemed to concur that the fundamental right claimed and upheld was derivative of several express rights and in this case, really, the Ninth Amendment added almost nothing to the argument. But if there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?”

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