Cohabitation and NC Law

This morning's News and Record had a story about a young woman who was suing to overturn NC state law on the subject of cohabitation.   This woman lost her job as a county 911 dispatcher because the sheriff found out that she was cohabiting in violation of state law.  She is being assisted in her suit by the American Civil Liberties Union.

A predictable groundswell of mock outrage and derision directed at this state law is beginning to arise in response to this story. 

But there are certain facts as demonstrated by research that should be considered. 

The cultural acceptance of cohabitation, which probably began during the 1970's, was premised on the belief that a "try-out' period prior to marriage is likely to produce more enduring marriages.  That has not turned out to be the case.  In fact, it has been demonstrated that married couples who have cohabited are more likely to get divorced. 

Moreover, there are ample demonstrable costs emotionally when abandonment takes place after a sexual relationship has been initiated and sustained.   The price in depression and other psychiatric disorders when this occurs, often in the midst of other psychosocial stressors, can be quite severe.

But I think the most significant objections I have to cohabitation are philosophical.  The culture of  cohabitation is based on the notion that continued participation in the most intimate of relationships is a matter which is primarily contingent on the satisfaction of each partner.  I would like to advance the idea that it should not be.  Rather, the focus of these types of relationships needs to be commitment-- unquestioned, unadulterated, uncompromised.   The idea that satisfaction is the basis for sticking around, or not sticking around, is the fuel that drives the epidemic of abandonment and divorce in our society.

Finally, we need to remember that these types of relationships are capable of producing children.  The spectre of creating out-of-wedlock children, or causing the perceived need for abortion,  raises additional ethical concerns.   All of the myriad adverse outcomes associated with homes that will be later headed by a single parent need to be considered.  The long-term interests of children should be the chief determinant of public policy in these matters-- not the satisfaction of adults.

This NC state law has not prevented these venal behaviors and attitudes primarily because it has not been enforced.  And perhaps it should not be.  But that does not mean that the law is wrongheaded.   We ought not fix that which is not broken.

Comments

[woody]

It is clear that you have put a great deal of good thought into this issue and have brought up a number of very good points, and backed them up very well.

I think you personally should consider not cohabitating. (Which you seem to have done.)

I think also that the state or federal government has no right to have a say in the matter one way or the other.

[ed cone]

Government has no business regulating this kind of thing. It's not mock derision, as you say, it's that we are free people and don't need a nanny state telling us how to live our lives. I disagree that the law is not broken -- it gives much more power to the government than the government should have.

[Joe Guarino]

Woody, Ed, thanks for commenting. I certainly agree that the federal government has no business in a matter such as this. And Ed, I agree with the statements I believe Lex and you made-- that if the US Supreme Court considered this law, with its present composition and its recent history of jurisprudence, it very well may dispose of this law.

But I personally don't see a constitutional impediment to this law. The US Constitution is silent on the matter, and delegates unenumerated powers to the states. Whether the state should regulate this type of power is, well, a matter of opinion. I still think the state has a legitimate interest in guiding family relationships so that men and women are more likely to meet their duties and obligations to each other and to their kids.

[ed cone]

You favor a far more intrusive role for government than do I. I don't need the government telling me how to arrange my domestic life, thanks.

[Joe Guarino]

I didn't like when government used electronic surveillance to monitor my driving habits at selected intersections. I regarded that as intrusive. But the fact is that government does some intrusive things. I am not sure that matters such as cohabitation should be immune merely because sexuality is involved.

I am not suggesting that this law should be widely enforced, and therefore do not feel that I am advocating that government should be overly intrusive. But, just as in the case of Lawrence vs. Texas, I do not believe that largely unenforced laws need to be repealed or overturned merely because some aggrieved party squeals, and the media and the courts and the political classes predictably follow. If we examine closely enough, we might find there is some legitimate basis for the existence of these laws.

[ed cone]

so...keep the law but don't enforce it? what's the point?

and it's not just some aggrieved party squealing -- although your blithe dismissal of the opinions and rights of others is noted -- i'm a happily-married heterosexual, and as an american i don't think this is the government's business.

traffic control, on the other hand, is the government's business -- they just did a lousy job of it with the red light cameras.

[Joe Guarino]

The point is that we should not acquiesce in the demands to legitimize wrongful behaviors that are harmful to others, and harmful to the larger society, just because a certain number of folks demand it. Remember, in the abacus employed by a discrete number of folks, if it's legal, it's regarded as ethically acceptable.

And within the next several days, I plan to post an article about how, in the case of Lawrence vs. Texas, the effort to take a largely unenforced law and invalidate it led to constitutional interpretations that can be arguably harmful to women, harmful to children, and ultimately harmful to society.

[ed cone]

there is a perfect test case here: alcohol prohibition. alcohol has undeniable deleterious effects on many, many people, and on society. but banning it was not just a disaster, it was un-American.

you can argue all day long that a given behavior can have negative effects. that's really not the point. the point is, should government be that involved in telling adults how to live their lives?

while i choose many of the behaviors your laws would impose, and encourage them in my own children, i just don't think that government has a role in enforcing them.

you want laws governing this kind of stuff? i hear iran is lovely this time of year. americans will choose for themselves.

[Joe Guarino]

I am not arguing for an Islamic theocracy like Iran.

The fact is that the type of law of which we are speaking was not uncommon in this country-- a representative democracy, a constitutional republic-- in the days before the Supreme Court suddenly discovered a privacy right in the Constitution as it relates to sexuality and reproduction, and in the days before the 14th amendment was also used to jettison laws on these issues just a few decades ago. Before that time, the structure of many state laws was such that the interest of the child carried greater weight than the selfish interest of adults. This is as it should be. Men and women did not enjoy a nearly unlimited license to abandon each other and their kids.

And I know, Ed, that you personally would not conduct yourself in this manner, and you do not endorse this type of behavior. But we can expect a higher standard from others without becoming Iran; and we need to.

[ed cone]

i don't have a problem with adults living together without formal blessing from church or state. that is the decision of the adults in charge.

to point to the fact that certain laws have existed in previous eras as justification for their continued existence is to invite mention of legal slavery, lack of women's voting rights, etc.

[Joe Guarino]

Ed- Congratulations on the Carolina victory. I know how exciting and satisfying it is when your team reaches the apex.

With respect to prohibition of slavery and women's suffrage, those are non-negotiable. They are protected by the 14th and 19th amendments, respectively. Another constitutional amendment would be needed to reverse them, and there is virtually no constituency arguing for this.

In fact, the 14th amendment was specifically written in the wake of the civil war to deal with the question of African Americans-- and mandating "equal protection of the laws" with respect to race-- as it was intended and understood at that time. Women did not even have the right to vote until about fifty years later. This demonstrates how limited its scope was as understood at that time, yet the 14th amendment is now used by the judiciary to invalidate state laws on a number of controversial, divisive social issues.

I wonder whether the state, with its present leadership, will defend the cohabitation law in court against the ACLU. I also wonder whether the state legislature, with its present leadership, will repeal it.

Good luck tomorrow night!

[Dave Dobson]

It seems like your post up there argues not only against cohabitation but also by implication for legalization of gay marriage and civil unions. If the bonds of the most intimate of relationships should be stronger, especially if there are children involved, then why not let gay folks make this deeper commitment?

[Matt Hill Comer]

Joe said, "But I personally don't see a constitutional impediment to this law. The US Constitution is silent on the matter, and delegates unenumerated powers to the states."

It has been held that whatever is in the Bill of Rights and prohibited for Congress to do is also prohibited for the State Governments to do. The reason this is seen this way is because the First Amendment only says that "Congress shall make no law..." and mentioned nothing of the States.

Now, I'm sure (since I don't have as much education as other folks on this issue) that I've left something important out or that I will end up leaving some major piece out, but the paragraph above I know is right.

If the Supreme Court has found that our Bill of Rights contains a right to privacy, then the states are bound to it.

[Roch101]

Joe, divorce should be illegal, shouldn't it?

[Samuel Spagnola]

Actually, Matt, you have it wrong- almost backwards. The reason it applies to the states is via the 14th Amendment:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws", not the First Amendment.

In fact, many federalists would argue that the clause you cite in the First Amendment actually enhances states rights because it's prohibition (on First Amendment issues anyway) is a limitation on Congress, not the states.

[Samuel Spagnola]

Of course, what constitutes "due process" is a great divide between the Left and Right. On the Right, we generally maintain this is only a procedural requirement- for example, you can't put someone to death without a fair trial. The 14th Amendment was intended to end the unlawful murder of blacks as well as the unlawful execution of blacks in addition to extending all other existing rights.

On the Left, they generally believe that procedural "due process" is insufficient, and that the "substance" of the law must be considered, not merely the fair application of the procedure applying the law.

[Joe Guarino]

Sorry, folks, I did not notice that folks were adding to this post until late tonight. (The post was written 16 months ago.)

Matt, the process of applying very broad language to a specific state law is a matter of judicial discretion. I for the most part agree with Sam's interpretation.

Roch, I think no-fault divorce is a mistake. But I think divorce should be legal for cause and/or on mutual agreement of the parties involved.

Folks, I think we need to rely heavily on what the original, contemporaneous constitutional provisions were when they were passed, and shortly thereafter. That is the most reliable understanding of what they are saying. Of course the 14th amendment did not apply to laws against cohabitation, nor did the Bill of Rights.