Thursday, January 18, 2007

Criminalizing cohabitation

The proposed repeal of North Dakota's 117-year-old anti-cohabitation law highlights a continuing nuisance in seven states (North Dakota, Florida, Michigan, Mississippi, North Carolina, Virginia and West Virginia). North Dakota's law makes it a sex crime for an unmarried man and woman to live together (though it's not clear from the Associated Press story whether a conviction requires sex offender registration). With recent data showing 95 percent of us have had premarital sex, and with nearly 4 percent of North Dakotans apparently in violation of the law at present, this law has the potential for a real boom in prison construction.

But while people often dismiss these laws with a smirk by saying, "Oh, yeah, but they're never enforced," these are not laughing matters. As with other "morals" laws, the real harm here isn't in the very rare prosecution but in the use of the law to justify arbitrary discrimination. The AP story lists some alarming examples:

In West Virginia, a former prison inmate is challenging the state's anti-cohabitation law because it delayed his parole from prison on forgery convictions. Officials rejected William Stanley's plan to move in with his fiancee after his release.
Last September, a North Carolina judge ruled the state's law was unconstitutional, in a lawsuit filed by a woman who lost her job as a county sheriff's dispatcher because she was living with her boyfriend. The decision was not appealed.
In one case, a Norfolk, Va., day care operator faced losing her license because she was living with her boyfriend, but the Virginia Department of Social Services renewed the license when the ACLU agreed to represent her, Willis said.
And in case there was any lingering doubt among heterosexuals that the social conservative agenda includes your personal life, too:
Tom Freier, a spokesman for the North Dakota Family Alliance, said
repealing North Dakota's anti-cohabitation law would signal that the state
doesn't value marriage and the societal benefits it brings.
Overturning laws like this in the courts would presumably be (except, perhaps, for questions of standing) easy enough. It seems clear enough that they are unconstitutional under any of the competing readings of Lawrence v. Texas, but you needn't go any further than Eisenstadt v. Baird; it's hard to distinguish banning contraceptive use by unmarried couples from banning unmarried coupledom itself. A more interesting challenge would be under the Equal Protection Clause: these statutes discriminate against heterosexuals, because by their terms they only apply to male-female couples. And while there might be an argument there about discouraging out-of-wedlock births, I'd really like to see an attorney-general making it.
Still, I'd much rather see legislators stand up and reject these laws and the censorial attitude behind them.

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