Shacking Up: N.C. Anti-Cohabitation Law Under Legal Attack
North Carolina’s law making it a criminal offense for unmarried couples to cohabitate is under challenge by the ACLU.
There are some 144,000 unmarried couples living together in North Carolina, and they are all breaking the law – a statute that has been on the books since 1805. The law against cohabitation is rarely enforced. But now the American Civil Liberties Union is suing to overturn it altogether, on behalf of a former sheriff’s dispatcher who says she had to quit her job because she wouldn’t marry her live-in boyfriend.
Rudinger and other legal experts believe a 2003 U.S. Supreme Court ruling striking down a Texas anti-sodomy law may undermine the basis for North Carolina’s cohabitation law, which carries a fine of up to $1,000 and up to 60 days in jail.
Arnold Loewy, a law professor at the University of North Carolina at Chapel Hill, said the ACLU lawsuit is almost certain to succeed. If the high court’s decision in Lawrence v. Texas protects consensual sex among adults, “it’s hard to understand any serious argument that it would not include” the right to live together, he said.
North Carolina is one of seven states that still have laws on the books prohibiting cohabitation of unmarried couples. The others are Virginia, West Virginia, Florida, Michigan, Mississippi and North Dakota. North Carolina appears to be the only state where the law is being challenged.
The Virginia Supreme Court in January responded to the Lawrence v. Texas decision by striking down that state’s rarely enforced state law prohibiting sex between unmarried people. But a Virginia law against cohabitation remains on the books.
In January, the North Dakota House defeated a challenge to its cohabitation law on a 52-37 vote.
There were roughly three dozen cohabitation-related charges filed in North Carolina between 1997 and 2004, according to state figures. But the number of people actually convicted under the law – formally known as the fornication and adultery statute – is not clear, said Patrick Tamer, a statistician with the North Carolina court system. At least one judge, U.S. Magistrate Carl Horn in Charlotte, regularly asks defendants whether their living arrangements violate the cohabitation ban. Horn, who declined to be interviewed for this story, has refused to release violators unless they promise to comply.
Amazing. Loewy is almost certainly correct that, in light of Lawrence and a whole string of “privacy” rulings over the past forty years, the Supreme Court would strike these laws down as unconstitutional.
In reality, of course, nothing in the U.S. Constitution prevents states from passing and enforcing asinine laws such as this one. They’re horrible public policy, for a variety of reasons, but perfectly within the scope of state Reserved powers.