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 Thirty-three other states had repealed “alienation of affection” by statute.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 Titelbaum’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 Titelbaum “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 Titelbaum 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.