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Tuesday, December 16, 2003

Re: ???

The case, by the way, is titled "In the Matter of David G. Blanchflower and Sian E. Blanchflower" and concerns, according to the court, "Divorce -- whether petitioner can specify adultery as fault ground for divorce when the respondent and co-respondent are of the same sex; appeal from denial of motion for interlocutory transfer."

And here is the court's opinion. The dish:
The record supports the following facts. The petitioner filed for divorce from the respondent on grounds of irreconcilable differences. He subsequently moved to amend the petition to assert the fault ground of adultery under RSA 458:7, II. Specifically, the petitioner alleged that the respondent has been involved in a "continuing adulterous affair" with the co-respondent, a woman, resulting in the irremediable breakdown of the parties� marriage. The co-respondent sought to dismiss the amended petition, contending that a homosexual relationship between two people, one of whom is married, does not constitute adultery under RSA 458:7, II. The trial court disagreed, and the co-respondent brought this appeal.

Before addressing the merits, we note this appeal is not about the status of homosexual relationships in our society or the formal recognition of homosexual unions. The narrow question before us is whether a homosexual sexual relationship between a married person and another constitutes adultery within the meaning of RSA 458:7, II.
...
The plain and ordinary meaning of adultery is "voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband." Webster�s Third New International Dictionary 30 (unabridged ed. 1961). Although the definition does not specifically state that the "someone" with whom one commits adultery must be of the opposite gender, it does require sexual intercourse.
...
As noted above, the concept of adultery was premised upon a specific act. To include in that concept other acts of a sexual nature, whether between heterosexuals or homosexuals, would change beyond recognition this well-established ground for divorce and likely lead to countless new marital cases alleging adultery, for strategic purposes. In any event, "it is not the function of the judiciary to provide for present needs by an extension of past legislation." Naswa Motor Inn, 144 N.H. at 92 (quotation and brackets omitted). Similarly, "we will not undertake the extraordinary step of creating legislation where none exists. Rather, matters of public policy are reserved for the legislature." In the Matter of Plaisted & Plaisted, 149 N.H. 522, 526 (2003).

The court's restraint is, I think, laudable.

BTW, Mr. Blanchflower is a professor of economics at Dartmouth and best known (I think) for his work on wages.

Posted by Andrew Grossman at 4:07 PM

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