Debate grows on out-of-wedlock laws

Some 1.6 million Americans in seven states are breaking old anticohabitation rules.

In Black Jack, Mo., (pop. 6,792), the city council wrangled last week over precisely how to define a family.

In West Virginia, religious conservatives are getting ready to do battle with the American Civil Liberties Union (ACLU) over the use of a law that aims to bolster marriage by outlawing "lewd and lascivious cohabitation."

In North Carolina, a state judge in July ruled unconstitutional a law that states it's illegal for unmarried couples to live together.

Still, 1.6 million Americans in seven states are breaking their states' laws for doing just that, according to Unmarried America, a lobbying group for singles' rights based in California.

States enforce these morality-based laws – which can include fornication and "criminal conversation," sweet-talking a married woman with a mind toward adultery – only in select cases, experts say.

Yet the debate about whether the laws should continue to exist is a flash point between secularists and traditional Christians over the definition of a family.

"These are archaic laws which are hardly ever enforced, but they are ... often used as a weapon to degrade someone else," says Dan Pollitt, a law professor at the University of North Carolina, Chapel Hill.

Nationwide, the number of couples living together out of wedlock has grown from 500,000 in 1970 to more than 5 million today. For the first time, a majority of households in the US are headed by unmarried or single adults, according to a census report released last week.

But until the 20th century, cohabiting was not acceptable in most places. In 1805, North Carolina enacted its law barring adultery and fornication as part of a host of puritanical social controls that included "keeping bawdy houses." North Dakota, Mississippi, Florida, Michigan, Virginia, and West Virginia also have laws banning cohabitation.

Christian activists say the state laws are worth fighting for, but acknowledge that cohabitation is "part of the life we live now," says Brian Fahling, senior trial attorney at the American Family Association's Center for Law & Policy in Tupelo, Miss. One reason: Unwed couples are more than three times as likely as married couples to report incidents of domestic violence, reports the National Survey of Families and Households.

"Our forefathers were wise, and such laws as the cohabitation law here in North Carolina are really important for holding up moral standards," says the Rev. Mark Creech, director of the Christian Action League. "Cohabitation simply imitates marriage, but without actually creating the internal, the emotional, the moral and the legal structure that protects couples."

About 144,000 unmarried couples in North Carolina live together, according to the 2000 census. The state law banning cohabitation was cited nearly three dozen times between 1997 and 2003.

Ironically, it is mostly used in marriage dissolution cases when a spouse is attempting to gain custody of a child by exposing a former mate's out-of-wedlock living arrangement. Criminal conversation charges have led to big jury rewards for several plaintiffs in divorce proceedings, state law experts say.

The anticohabitation laws continue partly because politicians don't want to get involved in a culture battle. The North Dakota House voted 52 to 37 in January 2005 to keep the state's law that bans living together out of wedlock.

They also remain because judges usually don't allow arguments on the constitutionality of laws banning cohabitation unless there is proof that a person has experienced real harm – beyond being labeled a criminal in a civil case.

A North Carolina district judge in July determined that real harm was inflicted on Deborah Hobbs, a sheriff's department dispatcher in Pender County, N.C. In 2004, she was forced to leave her job for not ending her out-of-wedlock living arrangement with her boyfriend. The ACLU sued the sheriff's department on her behalf. Although the judge ruled the law unconstitutional, a state appeals court must hear the case.

In a similar clash in West Virginia, the ACLU says it's investigating a claim that law enforcement has used the state's anticohabitation law against a couple.

Christian groups, including the West Virginia Family Foundation and the American Family Association, say they are defending the law to uphold Judeo-Christian values, says Mr. Fahling.

In some places, anticohabitation laws have been losing legal standing. Arizona and New Mexico abolished theirs a few years ago. More recently, the landmark Supreme Court decision (Lawrence v. Texas) in 2003, which struck down a Texas law that banned sodomy, has given civil liberties groups fuel to take on such laws.

In Black Jack, the city council voted last Tuesday to overturn an ordinance that had kept at least one family with unmarried parents from getting a housing permit. The law had prohibited more than three people not related by "blood, marriage, or adoption" from living together to prevent crowding – not for moral reasons, the mayor has said.

Some worry about a trend to regulate singles' lifestyles. "I think we're going to see more of this, the zoning battles, the whole battle of equal rights for unmarried people," says Tom Coleman, director of Unmarried America.