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Should the law punish adultery?

By Michael C. Dorf
FindLawexternal link columnist
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(FindLaw) -- Last week, four-star Army General Kevin Byrnes, a 36-year veteran on the brink of retirement, was relieved of his command of Fort Monroe. According to press accounts, Byrnes lost his command as punishment for committing adultery. Yet Byrnes contends that the adultery occurred after he was formally separated from his wife, was committed with a civilian, and did not affect his official duties.

Should the Army initiate prosecution, Byrnes could face further discipline that could deprive him of thousands of dollars in retirement pay. The removal of command has already cost his reputation.

Numerous members of the armed services are disciplined annually for consensual relationships. With the nation at war and the armed forces missing recruitment goals, is there any possible justification for disciplining military personnel for private consensual conduct?

The answer is surely no. But explaining exactly why will require me to confront a related question: How can the law subject anyone to sanctions for adultery?

Code on conduct

The Uniform Code of Military Justice does not specifically prohibit adultery, but it does contain a provision, Article 134external link, prohibiting "all disorders and neglects to the prejudice of good order and discipline in the armed forces [and] all conduct of a nature to bring discredit upon the armed forces . . . ."

If a state or the federal government were to impose criminal penalties on civilians for such a vaguely defined offense, the courts would strike it down as inconsistent with due process. American constitutional law requires that the criminal statute books give every person fair notice of what conduct is and is not prohibited, and the language quoted above fails to do that.

Nonetheless, the Supreme Court upheld Article 134 against a vagueness challenge in the 1974 case of Parker v. Levyexternal link. Writing for a majority, then-Justice Rehnquist opined that the vagueness doctrine should be less demanding for military discipline than for criminal punishment of civilians, in part because the Uniform Code is not intended to be comprehensive in the way that a civilian criminal code is.

And it would surely be disingenuous for General Byrnes to claim that he was unaware that the armed forces prohibited adultery. Paragraph 62 of the Manual for Courts-Martialexternal link expressly defines adultery as violating the "prejudice of good order" provision of the Uniform Code. (Note that I have provided a link to the 2000 edition on a Navy Web site, but the same manual applies to the Army. Amendments adopted by executive order in 2002 did not change paragraph 62.)

Good order and discipline

Nonetheless, General Byrnes appears to have a good defense to charges under paragraph 62. That paragraph requires not only that a married member of the armed forces had sexual intercourse with someone other than his spouse, but also "[t]hat, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces."

It is easy to see how an officer who conducted an extramarital affair with one of his subordinates might thereby prejudice "good order and discipline." But the woman with whom he had an affair was not in the military.

A consensual adulterous relationship with a civilian could prejudice "good order and discipline" or "bring discredit upon the armed forces" under some circumstances.

The military chain of command depends upon trust. It may be reasonable to infer that someone who would break his solemn wedding vows would also break the bonds of trust with the men and women under his command.

Whatever one thinks of the trust point, however, it is difficult to see that it applies to General Byrnes. By his account, the extra-marital relationship occurred when he was separated from his wife.

Perhaps because the case against General Byrnes appears to be so weak, the Army has not brought formal adultery charges against him. According to anonymous Army officials quoted in the New York Times, General Byrnes was not relieved of his command for adultery as such, but rather for disobeying an order to end his adulterous relationship pending the outcome of an Army investigation.

If true, that would put the Army action in a somewhat better light, but it is hard not to sympathize with General Byrnes: If there was nothing illicit about the relationship, why should he have been required to break it off or forfeit his command?

Adultery and 'Don't Ask, Don't Tell'

More broadly, the Byrnes case raises two sorts of legal and policy questions. Should the armed forces really be disciplining officers and enlisted personnel for consensual sexual conduct?

Even if one credits the rationales I have provided for treating certain consensual relationships as in some way prejudicial to good order and military discipline, the adultery provision of the Manual for Courts-Martial is at best a blunt instrument for furthering those rationales.

A sexual relationship with a subordinate could constitute an abuse of power, but the abuse has nothing to do with the marital status of the people conducting it. Such relationships are likely to be more harmful when they occur between single people, because a single commander is more likely to conduct the relationship openly and send harmful signals to other subordinates.

It is true that adultery often bespeaks a character flaw, but so do a host of other forms of private conduct that the military does not proscribe.

The adultery prohibition seems more concerned with enforcing "morals" than with promoting military discipline as such. In this respect, it is of a piece with the senseless "don't ask, don't tell" policy that excludes from military service thousands of patriotic Americans because of their private consensual sexual conduct.

To say that a particular provision of the Uniform Code of Military Justice or the Manual for Courts-Martial is senseless, however, is not to say that it cannot be validly enforced. Courts have a long tradition of deferring to the military itself, or to the political branches of government in evaluating military policies.

Thus, a judge might well agree with me that the adultery prohibition -- or, to take another example from the Uniform Code, the prohibition of sodomy, whether performed with a person of the same or opposite sex -- is profoundly unwise, but could nonetheless uphold the military rule under a principle of deference.

But what about parallel laws in civilian life? In the 2003 case of Lawrence v. Texasexternal link, the U.S. Supreme Court invalidated a Texas law prohibiting same-sex sodomy, in an opinion making clear that even a prohibition that applied equally to heterosexual and homosexual acts would be unconstitutional. The Lawrence opinion was underwritten by a principle holding that the government has no legitimate business interfering with the private consensual conduct of consenting adults. Might the same principle invalidate state laws prohibiting adultery?

Adultery, same-sex sodomy

The line of cases culminating in Lawrence includes statements affirming the power of the state to prohibit adultery, so one might think that adultery is not like same-sex sodomy.

Yet these statements cannot be taken at face value, for they originate with a dissent by Justice Harlan in the 1961 case of Poe v. Ullman, which also asserted state power to prohibit homosexual conduct. Given that the Court in Lawrence was willing to use the logic of Justice Harlan's Poe dissent without also embracing its assertion of state power to regulate homosexual acts, it might also be willing to extend the principle of freedom from state interference with sexual relationships of consenting adults to encompass adultery, notwithstanding the other Poe assertion.

However, there are important distinctions between, on the one hand, non-adulterous sex between consenting adults of the same or opposite sex, and, on the other hand, adulterous sex. Most obviously, non-adulterous sex between consenting adults typically harms no third parties, whereas adultery typically constitutes a breach of perhaps the most solemn promise a person can make.

Accordingly, one might conclude that the Lawrence precedent will not be extended to cover adultery.

Civil, criminal penalties

Perhaps adultery ought to be understood simply as a very serious breach of contract. Adulterers cause real harm to their spouses, and just as the law makes those who breach their commercial contracts pay damages for the harm they cause, there seems nothing wrong with "fault" divorces that impose greater financial obligations on adulterers than on other ex-spouses.

But by the same token, just as we long ago abolished debtors' prison, so too it is long past time to recognize that the criminal law is an improper tool to use against adulterers.

The issue is not hypothetical: According to a Washington Post essay by George Washington University law professor Jonathan Turley, as of last September, the criminal codes of 24 states still prohibited adultery, and zealous prosecutors still invoke these provisions from time to time.

Until now, legislators have been understandably reluctant to propose decriminalization and risk appearing to be "pro-adultery." And unlike the gay rights movement, which could litigate under the banner of "gay pride," no one has been especially eager to bring a test case on behalf of adulterers.

But because of the special circumstances surrounding the acts committed by General Byrnes, he may present the unusual case of a sympathetic adulterer. It would be ironic, though fitting, if public outcry over the injustice of his treatment led to broad legal reform through legislative action or the courts.

Michael C. Dorf, a FindLawexternal link columnist, is professor of law at Columbia University.

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