- The Washington Times - Monday, October 9, 2006

Decades ago, it was illegal in every state for adult lovers to live together without being married. Today, just seven states still criminalize cohabitation and the American Civil Liberties Union (ACLU) is eager to reduce that number to zero.

For instance:

• In North Carolina, the ACLU has sued the state on behalf of emergency dispatcher Debora Hobbs, who was told by her boss that she was breaking the law by living with her boyfriend and she should get married, get separate addresses or get a new job.

• In West Virginia, the ACLU has sued the state on behalf of convicted forger William Stanley, who was granted parole last summer but had to wait in jail for four more months because his plan to live with his fiancee was illegal under state law.

• In Michigan, the ACLU took up the case of divorced father Christian Muller. A judge told Mr. Muller he couldn’t have his children visit him overnight if his live-in girlfriend was in the house.

These states and four others — Florida, Mississippi, North Dakota and Virginia — have laws outlawing “lewd and lascivious” cohabitation, said ACLU attorneys, who urge an end to such “antiquated” laws.

“We understand that there is a debate over the morality of whether it’s good for people to live together out of wedlock,” said Jennifer Rudinger of ACLU of North Carolina. “The problem we have is that it’s not the role of government to make that decision a crime, particularly when you’re talking about two consenting adults.”

Traditional values groups said social science is confirming the wisdom of such laws and they should stay on the books.

The negative effects of cohabitation “go beyond the bedroom door” and raise risks for divorce, expose some children to unhealthy relationships and undermine “the ethic of commitment in marriage,” said Stephen Daniels of the North Carolina Family Policy Council. North Carolina’s no-cohabiting law should be upheld because it is part of a “chorus of laws” — including those on age of consent, fornication, adultery, rape, incest and obscenity — that protect marriage and discourage sexual activity outside marriage, he said.

Cohabiting has gained in popularity in recent years.

In 2005, the U.S. Census Bureau reported 4.85 million cohabiting couples, up more than 1,000 percent from 1960, when there were 439,000 such couples.

A 2000 study found that more than half of newlyweds lived together, at least briefly, before walking down the aisle. Many young people now view cohabiting as normal and prudent — “a useful way ‘to find out whether you really get along,’” Barbara Dafoe Whitehead and David Popenoe wrote in their 2006 “State of Our Unions” report for the National Marriage Project at Rutgers University.

As cohabiting has grown, enforcement of anti-cohabiting laws has waned. Some laws have been repealed, while others are treated as unenforceable.

But these laws should all be repealed “because they’re hanging over people’s heads,” said Nicky Grist, executive director of Alternatives to Marriage Project (ATMP), an advocacy group for unmarried people in Brooklyn, N.Y. The laws “prolong the life of an outdated and very unfair stigma,” she said. “Living together is not a sin, and it’s not a crime and shouldn’t be a crime.”

ACLU attorneys added that even the remaining anti-cohabiting laws are all but rendered moot by the U.S. Supreme Court’s 2003 Lawrence v. Texas decision.

The Lawrence case was brought by two homosexual men who were arrested under Texas’s anti-sodomy law. The high court ruled that because of constitutional privacy rights, the government could not regulate “certain intimate conduct” of consenting adults in their homes.

The same rationale can be applied to anti-cohabiting laws, Ms. Rudinger said.

Her reasoning was echoed in July when Superior Court Judge Benjamin G. Alford declared North Carolina’s anti-cohabiting law unconstitutional “as explained in” the Lawrence decision. His ruling forbids any defendants — including all state officials — from enforcing the law, said Ms. Rudinger, who added that her client quit her dispatcher job to stay with her boyfriend but is now employed elsewhere.

The North Carolina attorney general has not decided about an appeal, and the North Carolina Family Policy Council is urging the state to stand up for its law, said Tami Fitzgerald, a staff attorney for the group.

Not only is the anti-cohabiting law important to defend as part of a pro-marriage legal policy, she said, but it’s also the only state law outlawing fornication and adultery. “By striking down this statute, [the judge] has basically authorized adultery and fornication,” Ms. Fitzgerald said.

Meanwhile, in West Virginia, the ACLU is waiting for a response for its Sept. 18 lawsuit filed in Circuit Court of Kanawha County on behalf of Mr. Stanley. The lawsuit, which also claims Mr. Stanley’s religious freedoms were abridged when the state placed him in a religious housing program after blocking him from living with his fiancee, seeks damages and a judgment against the state’s cohabiting law, said Andrew Schneider, executive director of the ACLU of West Virginia.

In Michigan, Mr. Muller’s ex-wife — who brought the complaint about his live-in girlfriend — relented and the case ended, said Michael J. Steinberg, legal director of the ACLU of Michigan. However, two Democratic lawmakers introduced a bill Sept. 21 to repeal “antiquated” Michigan laws, including the cohabitation statute.

In Florida and Virginia, ACLU representatives said they were eager to hear from anyone who was being prosecuted under anti-cohabiting laws. “The law is there; it is clearly unconstitutional … but to our knowledge, it never gets used in Virginia,” said Kent Willis of ACLU of Virginia, adding, “Our door is open to a plaintiff.”

ACLU representatives in Mississippi and North Dakota could not be reached. However, in 2003 and 2005, North Dakota lawmakers rejected bills to repeal that state’s anti-cohabiting law.

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