Why Should Adultery Be Legal?

If the push for homosexual “marriage” means anything, it means that liberals, libertarians, and libertines of all sorts want marriage to remain (even if they don’t realize they are degrading it beyond recognition) a civil institution recognized by the law and by the government.

So explain to me why everyone takes it for granted that adultery should be legal and that the only reason New Hampshire makes adultery a crime is due to their backward, antiquated tradition.

I’m not saying that the New Hampshire law is devoid of problems. Here is the Washington Post’s appraisal:

A 200-year-old law criminalizing marital infidelity could be repealed this year if a measure moving through the New Hampshire legislature passes the Senate in coming days.

The law, on the books since the early 19th Century, makes adultery a Class B misdemeanor, punishable by a fine of up to $1,200. But the state House last week moved to repeal the law in an overwhelming, bipartisan vote.

The state Senate will take up the bill on Thursday, where it is expected to pass. A spokesman for Gov. Maggie Hassan (D) told the Associated Press she would likely sign the repeal if it gets approval from the legislature.

As it stands, the law is pretty antiquated. The state Judicial Branch said the law hadn’t been enforced in more than a decade. And it doesn’t apply equally to all: In 2003, the state Supreme Court ruled that homosexual affairs would not be covered by the statute, which only covers adultery between a man and a woman. The court ruled that case law only defined adultery as “intercourse from which spurious issue may arise” — as in, a child conceived during the affair.

That provisio about “issue may arise” strikes me as weird and non-traditional. I suspect that New Hampshire’s criminalizing of adultery pre-dates that law and that maybe this “antiquated” law represents something of a modern innovation in the big picture. I can’t be sure.

But there is no reason to claim that a law against adultery is “intrusive and unenforceable,” as the advocates of repeal claim. If New Hampshire still demands a marriage license, it has already begun to intrude and enforce. Furthermore, unlike general fornication between two unmarried people, in the case of adultery there is an aggrieved party who can be expected to bring charges and collect evidence. Half the state’s “job” is done in “the private sector.”

I don’t see any reason the fine should go to the state. Also, in the case of a household, it seems to me a fine punishes the household for the sake of the offender. It would be better to find some kind of punishment that singled out the unfaithful spouse. If the person had enough time to have an affair, maybe he or she can fill the hours with required community service.

The bottom line is that marriage is a voluntary arrangement based on promises. If those promises are unenforceable, then marriage doesn’t really exist as a public institution. Perhaps that is what makes fictions like same-sex “marriage” look reasonable now.