Keep adultery laws on the books

Consider George Washington University law professor Jonathan Turley’s commentary in the September 8 edition of The Roanoke Times, “Keep prosecutors out of Virginia’s bedrooms: Abandon randomly applied adultery laws.” Turley argues that Virginia’s criminal punishment laws against adultery are outdated. He likens enforcement of the law with Islamic fundamentalist states that “use criminal penalties to police the morality of its citizens.” Finally, he argues that a recent case where a Luray town attorney was found guilty in criminal court of adultery could have been an excellent case for the U.S. Supreme Court to finish the work it started last year in Lawrence v. Texas -- a decision that struck down state anti-sodomy laws.

Turley also does an excellent job in his historical recounting of how these morality laws became part of American jurisprudence. Yet, he stumbles badly, as all “value relativists” must in his implied argument that government laws based on religious values must stay out of America’s bedrooms. He never mentions in his recounting (to paraphrase Chief Justice Burger in a famous sodomy case) that condemnation of adultery is firmly rooted in Judeo-Christian moral and ethical standards. Nor does he say that there has been state intervention on this issue throughout the history of Western Civilization.

There exists no “value vacuum” in any society when it comes to ethical norms. The Virginia laws say that adultery is a criminal (and civil) offense if there is a complainant. These laws represent value norms that are imposed on those who disagree with them. Turley, and others, want these laws repealed because they believe they violate individual freedoms in a democratic society.

Yet, to overturn these laws would impose Turley’s views of morality and human sexuality on those who believe that adultery is bad for society and thus should remain a criminal offense. Why should we have to accept Turley’s notions of what is morally wrong and punishable by law? The Supreme Court’s ruling in Lawrence imposes a set of values on me that I disagree with. Score one for the value relativists.

But don’t pretend that it is only people with a religious orientation who impose values on society. Both sides in this cultural war believe their value beliefs are best for society. Whenever an adultery or sodomy law is either upheld or overturned, one side has won and the other side must chafe under what they believe is a grave injustice. Consequently, the “cultural war” public policy arguments represent the essence of a zero-sum game.

For Turley and other value relativists to pretend otherwise is disingenuous and intellectually dishonest. This type of deception leads to what political philosopher Eric Voegelin has called the “intellectual swindle.”

Turley’s argument “swindles’ in another area as well. He contends that the state is selective in enforcement of the adultery criminal statute. He cites the Bushey case in Luray where the lover, not the wife, filed the complaint. The commonwealths’ attorney said there was no selective prosecution here because Bushey’s lover filed the complaint and consequently, the state had to prosecute. Turley, in turn, calls this explanation baffling because “according to studies, he could throw a stick on any corner and probably hit a couple of adulterers.”

The law professor is correct that adultery is rampart in our society but his answer begs the question: Are sizeable numbers of Virginians filing criminal adultery complaints? The answer is no. In fact, most citizens think of adultery as a civil, not criminal, offense. Hence, the commonwealths’ attorney is correct. If the criminal complaint is filed, he must prosecute. Turley’s verbal slight-of-hand, calling criminal prosecution of adulterers selective, doesn’t obfuscate these realities.

Even when prosecutors don’t want to pursue morality cases, the complainant often insists. In the famous 1986 U.S. Supreme Court sodomy case of Bowers v. Hardwick, the Atlanta district attorney did not want to present evidence to the Grand Jury against Hardwick unless further evidence was forthcoming. When it was obvious that no additional evidence would be presented and the case would not be heard in state court, respondent Hardwick then bought suit in Federal District Court challenging Georgia’s anti-sodomy statute.

I assume this was also the situation in the Bushey case. The lover, who is not married, filed the complaint. Obviously, she was vindictive and wanted to punish Bushey. Ironic? Yes (unless you believe that hell hath no fury like a woman scorned).

Unconstitutional? No. Most prosecutors would prefer spending their time and resources trying violent felony cases, not morality cases. However, there is no suggestion that in Luray or Atlanta or anywhere else in this country that prosecuting these type cases has been a distraction for states’ attorneys bringing violent felons to trial.

Laws reflect the morality of a state or nation. Moreover, we all understand and make sense of the law through our philosophical or religious worldview. As a Muslim, I see the daily reality of the Qu’ranic verse prohibiting adultery: “Nor come near to adultery, for it is a shameful deed. And an evil, opening the road to other evils.”

What evils? The break-up of the family, psychological and emotional trauma for children, divided assets, custody issues, and hatred or murder. Turley acts as if adultery is a victimless crime that should only be adjudicated in civil court at the time of divorce. He is wrong. It is a criminal act with profound societal implications.

Turley and the other value relativists also come from a world-view that dates back to antiquity: they are speculative Gnostics. Like other Gnostics (Greek for knowledge), Turley believes that God’s ordered society (here, prohibitions against adultery) is defective and unjust and that it is man’s role to replace it with a perfect and just order. Once the order of God is destroyed, Gnostic thinkers will rule the society. Voegelin notes that the Gnostic believes that “To rule, and no longer be the servant of God, ennobles man. To rule means to be God.”

Like his fellow traveler (Osama bin Laden) on the Gnostic highway, Turley’s Gnosticism is simply a play for power and dominance. He ignores all of the relevant research data that show the destructive societal havoc of adultery. In actuality, it is not the adultery criminal sanctions that Turley thinks are outdated; it is the idea that God (as a phase of human consciousness) has out lived its usefulness.

Adultery is Virginia is classified as a class 4 misdemeanor punishable by a maximum fine of $250. Bushey paid a small fine and did 20 hours of community service. These sentences are not exactly a violation of the Constitution’s Eighth Amendment ban on cruel and usual punishment.

Delegate Brian Moran, D-Alexandria, is a member of the Virginia State Crime Commission. The group is in the process of reforming Virginia’s criminal laws and will propose repealing sodomy and fornication statutes. Yet, the adultery statute will stay on the books. Moran understands that public policy is both substantive and symbolic. While the adultery criminal sanction is not used often, it reinforces the symbolism that the state of Virginia has a moral compass. Ironically, as a result of the notoriety of the Bushey case, more Virginians will probably use the law in the future. This may actually discourage some people from engaging in this harmful practice.

At the end of the day, Turley’s position is merit less from a historical, social and legal point of view. Like all arguments about religious-based moral laws, he is basically arguing that the majority sentiments of Virginia citizens concerning the criminal sanction of adultery should invalidated in favor of a minority view. It is a very weak argument.

A $250 fine and public shame for the costs that adultery inflicts on society is not much of a punishment. The Virginia law is as simple as Robert Blake used to say in his TV role as the detective Beretta, “Do the crime, pay the fine.” Let’s keep it that way.