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Missouri Takes the Sting Out of Extramarital FlingsMaking laws out of nothing at allby Sean Carter Thanks to the Missouri Supreme Court having an affair with a married person has become a lot cheaper. On June 17th, Missouri’s highest court abolished the state’s “alienation of affection” law. Under this law, an aggrieved husband or wife could sue a spouse’s lover for being a “home wrecker.” The concept of “alienation of affection” goes back hundreds of years ago to the first Dick Clark’s New Years Rocking Eve. The original idea was to compensate husbands for losses they sustained when their wives left them for other men. At the time, women were generally regarded as property of their husbands. As a result, stealing a man’s wife was analogous to stealing his horse, except that you could be hung for stealing a man’s horse. Of course, over time, the general view of women improved (if only slightly). Therefore, these laws were expanded to allow women to sue as well. At one time, almost every state had an alienation of affection law on its books. The justification for these laws was that they preserved marriages and protected families. However, states began to realize that these laws were unworkable because of ever-decreasing societal mores and ever-increasing life expectancies. After all, it was one thing to expect monogamy when people only lived to reach the age of 40. However, when people started living into their 80s and 90s, monogamy started to seem as realistic as Congress ever passing meaningful health care reform. Besides, even if it makes sense to allow civil punishment for infidelity, alienation of affection laws punish the wrong party. If anyone should compensate the aggrieved spouse, it should be the cheating spouse. This is the person who swore everlasting fidelity in a church service or in a Las Vegas drive-through wedding chapel. The “other man” or “other woman” isn’t contractually obligated to anyone. However, even with the recent defection of Missouri, eight states still allow for alienation of affection lawsuits – Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota and Utah. Of course, these laws aren’t particularly popular with the people of these states (except for Utah) but they remain on the books anyway. But why? The sad truth is that bad laws are like love handles – once you get them, they are simply impossible to get rid of (trust me on this one). This is particular true with laws affecting public morals. State legislators find it extremely difficult to overturn these arcane laws. After all, what politician wants to be thought of as “pro-cheating”? Recognizing this inevitable fact of life, the Missouri Supreme Court decided to take matters into its own hands, even if that meant overstepping its bounds. In fact, one of the dissenting judges wrote “the general assembly, and not the Court, should determine whether the tort of alienation of affection should be abolished.” This is technically true. The judiciary has a limited role in our system of government. Its primary role is to interpret the laws passed by the legislature (and to select a President when the people of Florida start counting dimpled chads). However, the role of the judiciary is NOT to decide which laws are outdated or just plain stupid. However, this is precisely what the Missouri Supreme Court did in this case. It reasoned that the law was based on an “antiquated premise that a husband has property rights in his wife” and that the law has “no place in modern jurisprudence.” While this may be true, it isn’t a valid legal basis for a court to usurp the power of elected officials. As a general rule, courts can only overturn a law when it is enacted illegally or it is unclear or it violates the constitutional rights of the people. None of these factors were present in this case. There is no evidence that the law was enacted without proper authority. The language of the law is clear (at least by legal standards). And finally, although many judges view Constitutional rights broadly, I don’t think any sane judge could argue that the U.S. or Missouri Constitution allows for the “right” to sleep with someone else’s spouse. Unfortunately, the Missouri Supreme Court isn’t the only court making its own law on this issue. In fact, six other states have had their alienation of affection laws abolished by judicial fiat. And although I understand the rationale in these cases, they set disturbing precedents of judges making the law rather than merely interpreting it. Let’s face it. The only thing that keeps politicians somewhat accountable to the public is that they need our votes to keep their cushy jobs. Therefore, they will at least pretend to care about our needs. However, the same thing can’t be said for judges, many of whom are appointed for life. If we allow judges to both make and interpret the law, they will become as powerful as Oprah; only not nearly as rich. It must be remembered that although absolute power corrupts absolutely, judicial power does NOT corrupt judiciously. ________________________________ Sean is a practicing attorney who writes a weekly humor column on current legal events called "Lawpsided." Lawpsided pieces appear in a growing number of general circulation papers across the country, including The Los Angeles Times. Moreover, his musings on the law appear on nationally recognized websites, such as jewishworldreview.com, findlaw.com, newsmax.com and etherzone.com, and legal publications, such as The National Law Journal and The Los Angeles Daily Journal. Lastly, he is a regular contributor to national magazines like Razor and Tirade. If you would be interested in publishing this piece or seeing other samples of his work, please feel free to contact him by e-mail, by phone at (626) 786-2095, or through his website at: |