In a major ruling on North Carolina law, a Superior Court judge ruled that North Carolina’s alienation of affections law is unconstitutional.
Judge Joe Craig determined “Here, no compelling state interest exists in protecting the marital relationship that can justify AA’s (alienation of affection) suppression of a right as fundamental as free speech…
“In fact, disgruntled ex-spouses utilize AA and CC (criminal conversation) as blackmail to obtain more money from an ex-spouse or an ex-spouse’s paramour. They seldom, if ever, serve as a means of reconciliation of the broken marriage. Therefore, an adult individual’s right to engage in private consensual sexual intercourse involving another consenting adult or to engage in private consensual communication with another adult constitutes a fundamental liberty that is deeply-rooted in our Nation’s history.”
The North Carolina Court of Appeals also previously determined that Alienation of Affections laws are unconstitutional, but that decision was overturned by the North Carolina Supreme Court in Cannon v. Miller, a 1985 case.
If this case is appealed, the question is whether the Court of Appeals will again hold that the law is unconstitutional despite the Supreme Court previously informing that Court that they had no authority to overturn a Supreme Court ruling.
But a lot has changed since 1985. Several United States Supreme Court cases have held that there is a Constitutionally protected right to engage in private, consensual sexual behavior, most notably in Lawrence v. Texas. There is a lot more law supporting Judge Craig’s decision now than there was in 1985 so the posture of the issue will be quite different on appeal.
A few years ago, I also argued that Alienation of Affections and Criminal Conversation laws were unconstitutional for the same reasons. But that was before a different judge. In that case, the judge took note of my arguments but ruled that he was powerless to rule in my favor because of the NC Supreme Court Cannon decision.