Gen. 105] 105

FAMILY LAW 

DIVORCE – WHETHER SAME-SEX MARITAL INFIDELITY CAN 

QUALIFY AS ADULTERY FOR PURPOSES OF FAMILY LAW 

PROVISIONS GOVERNING DIVORCE

July 24, 2015 

The Honorable Luke Clippinger 

Maryland House of Delegates 

You have asked whether the term “adultery” under Maryland 

law includes a spouse’s extramarital sexual infidelity with a person 

of the same sex. Although the concept of adultery has significance 

in both criminal law and family law, the State’s criminal 

prohibition against adultery has fallen into disuse, so we will focus 

on the definition of adultery for purposes of Maryland family law. 

In our opinion, adultery, as that term is used in the Family Law 

Article, includes a spouse’s extramarital sexual conduct with 

someone of the same sex. 

We base this conclusion in large part on the purpose behind 

adultery laws in the domestic relations context. The primary 

purpose of adultery as a concept in Maryland family law is to 

recognize that sexual infidelity is a breach of the marriage vow and 

causes damage to the marriage, such that the injured party should 

be allowed to dissolve the marriage more easily than would 

otherwise be the case. This purpose is implicated to the same 

degree whether an unfaithful spouse has sex with a man or a 

woman; extramarital sexual activity with someone of the same sex 

is just as damaging to a marriage as sexual activity with someone 

of the opposite sex. We accordingly believe that Maryland courts 

would recognize same-sex sexual infidelity as adultery. 

I 

Background 

A. Adultery as a Legal Concept Under Maryland Law 

Most people are familiar with adultery as a moral concept, but 

it is also relevant as a legal concept under Maryland law. It is one 

of only a few so-called “fault” grounds on which spouses may 

obtain an absolute divorce without first living “separate and apart” 

for an entire year. Md. Code Ann., Family Law (“FL”) § 7-103(a) 

(2012 Repl. Vol., 2014 Supp.). It is also a factor in alimony and 
106 [100 Op. Att’y 

child custody determinations. See FL § 11-106(b)(6) (providing 

that “the circumstances that contributed to the estrangement of the 

parties” is relevant in determining alimony); Robinson v. Robinson, 

328 Md. 507, 516 (1992) (child custody); Welsh v. Welsh, 135 Md. 

App. 29, 38 (2000) (alimony). 

The concept of adultery also appears in Maryland’s criminal 

law, but it has grown less relevant in recent years. Although 

adultery is still a misdemeanor, the criminal prohibition on 

adultery, as far as we can tell, has not been enforced in a long time. 

See Md. Code Ann., Crim. Law (“CR”) § 10-501 (2012 Repl. Vol., 

2014 Supp.) (providing that “[a] person may not commit adultery” 

and that anyone who violates the section “shall be fined $10”); see

also Cole v. State, 126 Md. 239 (1915) (representing the only 

reported decision we could find that involves a criminal 

prosecution for adultery). The significance of adultery within 

Maryland criminal law has diminished over time in other ways as 

well. For example, a criminal defendant could at one time claim 

that his or her spouse’s adultery was legally adequate 

“provocation” to “reduce a homicide from murder to 

manslaughter,” Dennis v. State, 105 Md. App. 687, 695-96 (1995), 

but the General Assembly has since repudiated that common law 

rule. See CR § 2-207(b) (providing now that “[t]he discovery of 

one’s spouse engaged in sexual intercourse with another does not 

constitute legally adequate provocation”). Nevertheless, adultery 

remains an important concept in Maryland family law, and the 

answer to your question thus has significant real-world 

implications for Maryland families in that context. 

B. The History of Adultery as a Legal Concept 

The development of adultery as a legal concept in England 

and the United States provides useful guidance about how courts 

might view the concept today. Adultery was not a crime under 

English common law. Peter Nicolas, The Lavender Letter: 

Applying the Law of Adultery to Same-Sex Couples and Same-Sex 

Conduct, 63 Fla. L. Rev. 97, 106 (2011). Rather, it was a common 

law tort that was intended to protect men—and only men—from 

having their bloodlines “adulterate[d].” Id. at 107. The fear was 

that, “if a married woman were to be secretly impregnated by a 

third party male, the husband’s issue would be severely tainted.” 

S.B. v. S.J.B., 258 N.J. Super. 151, 154 (1992). In other words, if 

a man had “intercourse with a married woman,” it might trick her 

unsuspecting husband into “support[ing] and provid[ing] for 

another man’s” child. State v. Lash, 16 N.J.L. 380, 388 (1838). 

English courts therefore allowed an aggrieved husband to recover 
Gen. 105] 107

damages from the man who had an affair with his wife. Nicolas, 

supra, at 106. 

Not surprisingly, the common-law definition of adultery 

reflected this highly gendered purpose: Adultery referred only to 

sexual intercourse between a married woman and a man who was 

not her husband. See, e.g., Evans v. Murff, 135 F. Supp. 907, 911 

(D. Md. 1955). A married man was thus free to engage in sexual 

intercourse with an unmarried woman without committing 

adultery under the common law. In that situation, the parent or 

guardian of the unmarried woman could instead sue the married 

man for the lesser tort of fornication. See Lash, 16 N.J.L. at 384, 

387. 

England’s ecclesiastical courts, which had jurisdiction over 

divorce and alimony proceedings, saw adultery through a different 

lens. They “viewed the evil of extramarital sex” as “its breach of 

the marital vows and the attendant unhappiness and demoralization 

that it caused.” Nicolas, supra, at 107. The canon law definition 

of adultery reflected this broader purpose. The ecclesiastical courts 

defined adultery to include sexual intercourse between any married 

person—not just a woman—and “someone other than his or her 

spouse.” United States v. Hickson, 22 M.J. 146, 147 (Ct. Mil. App. 

1986); see also State v. Bigelow, 88 Vt. 464, 92 A. 978, 979 (Vt. 

1915); State v. Holland, 162 Mo. App. 678, 145 S.W. 522, 523 

(Mo. Ct. App. 1912); Lash, 16 N.J.L. at 389-90. The “someone 

other” in the affair, if married, was also guilty of adultery, while, if 

unmarried, he or she was guilty only of fornication. Hickson, 22 

M.J. at 147.1

English colonists brought this legal tradition with them to 

North America. In fact, some colonies went further than the 

common law, making adultery a criminal offense. See Martin J. 

Siegel, For Better or for Worse: Adultery, Crime & the 

Constitution, 30 J. Fam. L. 45, 48 (1992). In addition to the 

common-law purpose of protecting men from raising other men’s 

children, it appears that these early American criminal laws may 

 

1

 Given the era in which the canon law operated, that “someone other 

than his or her spouse” typically referred to someone of the opposite sex. 

See, e.g., Holland, 145 S.W. at 523 (explaining the definition of adultery 

under the canon law as the “sexual connection between a man and a 

woman, one of whom is lawfully married to a third person; and the 

offense is the same whether the married person in the adulterous 

connection is a man or a woman” (emphasis added)). 
108 [100 Op. Att’y 

also have been intended, at least in part, to “safeguard[] community 

morals.” Id. Many other colonies and, later, states also enacted 

criminal statutes. Some of these statutes expressly adopted the 

common law definition, some expressly adopted the canon law 

definition, some adopted a hybrid of the two definitions, and some, 

like Maryland, simply prohibited adultery without defining it. See

Nicolas, supra, at 108-09 (citing Marvin M. Moore, The Diverse 

Definitions of Criminal Adultery, 30 U. Kan. City L. Rev. 219, 222 

(1962)). 

It appears that Maryland’s first criminal prohibition against 

adultery was enacted in 1650. See 1650 Acts of the Proprietary 

Assembly, ch. 1. The law provided merely that “[e]very person or 

persons that shall be found or proved . . . to have committed 

adultery, or fornication, such offender or offenders shall be 

censured or punished as the Governor and Council or other chief 

Judge and Commissioner present in Court . . . shall adjudge and 

think fit.” Id. (language modernized). Although the law was 

changed in 1715 to penalize adultery with a fine of £3 or 1,200 

pounds of tobacco, or a whipping of no more than 39 “stripes,” see

1715 Acts of the Royal Assembly, ch. 27, it still did not specifically 

define the term. See also Miles v. State, 435 Md. 540, 561-62 

(2013) (summarizing 1715 legislation). 

Over time, states largely moved away from the genderspecific common law definition. Most states appear to have 

adopted the broader canon law definition in the family law context, 

which makes sense given that this definition had governed divorce 

and alimony proceedings in England. See, e.g., Evans, 135 F. 

Supp. at 911 (explaining that, unlike under the common law, “[t]he 

term ‘adultery’ in divorce law in this country includes the act of a 

married man who has intercourse with a single woman”). As 

explained further below, Maryland is one of these states. See Flood 

v. Flood, 24 Md. App. 395, 396 n.1 (1975). Similarly, in the 

criminal context, many states have replaced their former common 

law definitions with ones that are not gender-specific or have 

repealed their criminal prohibitions altogether. See Nicolas, supra, 

at 100, 108-09. 

More recently, states have begun to answer the question you 

ask, namely, whether “adultery” is confined only to vaginal 

intercourse between a man and a woman or whether it also 

encompasses other sexual acts—either between a man and a 

woman or between two persons of the same sex. Courts in other 

states have reached conflicting results in this area. See, e.g., In re 

Blanchflower, 150 N.H. 226, 227 (2003) (concluding that adultery 

is limited to vaginal intercourse); Glaze v. Glaze, 46 Va. Cir. 333 
Gen. 105] 109

(1998) (same); S.B., 258 N.J. Super. at 157 (holding that, under 

New Jersey law, adultery includes same-sex sexual infidelity); 

RGM v. DEM, 306 S.C. 145, 149 (1991) (same); Menge v. Menge, 

491 So.2d 700 (La. App. 5th Cir. 1986) (holding that sexual acts 

other than vaginal intercourse between members of opposite sex 

constituted adultery); see also Doe v. Doe, 186 S.C. 507, 509-10 

(S.C. Ct. App. 1985) (declining to reach the issue, but discussing 

the “mixed results” in other states). 

II 

Analysis 

Maryland’s appellate courts have not yet had the opportunity 

to decide whether extramarital sexual infidelity between two 

persons of the same sex constitutes “adultery” under Maryland 

family law.2

 The Court of Special Appeals has suggested that “a 

pattern of homosexual activity” on the part of one spouse might 

constitute constructive desertion for purposes of divorce, but it did 

not address whether that activity might also constitute adultery. 

See Richardson v. Richardson, 17 Md. App. 665, 670 (1973). To 

our knowledge, the only Maryland court that has addressed the 

issue is the Circuit Court for Montgomery County, which held that 

extramarital same-sex conduct constituted adultery for purposes of 

divorce. See Schadegg v. Schadegg, Civil No. 159529, slip op. at 

2-3 (Mont. Cnty. Cir. Ct. Aug. 15, 1997). Circuit court decisions, 

however, lack precedential effect. Dep’t of Health & Mental 

Hygiene v. Dillman, 116 Md. App. 27, 41-42 (1997). 

Maryland appellate courts have also not yet resolved the 

closely related issue of whether adultery under FL § 7-103 

encompasses only vaginal intercourse, which in the criminal law 

context seems to be defined as sexual intercourse between a man 

and a woman. See, e.g., CR § 3-301(g). Some older cases include 

dicta along the lines of “nothing less than the carnal act itself can 

 

2

 As noted above, we focus on the definition under the Family 

Law Article, rather than the criminal statute, because the criminal 

statute is apparently no longer enforced in Maryland. The only 

situation in which the criminal statute might still be relevant is 

when a witness attempts to invoke the Fifth Amendment protection 

against self-incrimination to avoid admitting possible adultery. See 

Payne v. Payne, 33 Md. App. 707, 714 (1976) (permitting a 

husband to invoke the Fifth Amendment when it was “unclear” 

under Maryland law whether the crime of adultery “embraces the 

common law or canon law definition”). 
110 [100 Op. Att’y 

lay the foundation of a divorce for adultery,” see, e.g., Pohzehl v. 

Pohzehl, 205 Md. 395, 405 (1954), but a more recent case suggests 

that our appellate courts have not yet determined whether adultery 

is limited to coition, even in the criminal context. In that context, 

the Court of Special Appeals concluded that the definition of 

“sexual intercourse” offered by a murder defendant—“sexual 

intimacy” or “significant sexual conduct”—was “much too 

general” to serve as the legal standard for permitting the defendant 

to prove legally adequate provocation. Dennis, 105 Md. App. at 

698. The court declined, however, to decide whether sexual 

intercourse “might properly include any conduct other than 

coition.” Id. (emphasis in original). We are thus left to interpret 

the term “adultery,” as it appears in FL § 7-103, using the familiar 

principles that guide our construction of Maryland statutes. 

The “cardinal rule” of statutory interpretation “is to ascertain 

and effectuate legislative intent.” Mayor and City Council of 

Baltimore v. Chase, 360 Md. 121, 128 (2000) (quotation marks and 

citation omitted). To achieve this objective, we begin our analysis 

with “the plain language of the statute,” La Valle v. La Valle, 432 

Md. 343, 355 (2013), but we also look to other indicia of legislative 

intent, including the purpose of the statute. Baltimore County v. 

RTKL Assocs., 380 Md. 670, 678 (2004). We must also keep in 

mind that statutes should generally be construed to avoid doubts as 

to their constitutionality. See, e.g., Koshko v. Haining, 398 Md. 

404, 425 (2007). 

A. The Plain Language 

The plain language here does not provide a clear answer to 

your question. The General Assembly has not defined the term 

“adultery” in either the Family Law Article or the Criminal Law 

Article. See FL §§ 1-101, 7-103; CR §§ 1-101, 10-501. Moreover, 

although most dictionary definitions of adultery might be broad 

enough to encompass sexual activity other than vaginal intercourse, 

they tend to use general terms and do not address the issue squarely. 

See, e.g., Webster’s Encyclopedic Unabridged Dictionary of the 

English Language 28, 1755 (1996) (defining “adultery” to mean 

“voluntary sexual intercourse between a married person and 

someone other than his or her lawful spouse,” and then defining 

“sexual intercourse” to mean “genital contact, esp. the insertion of 

the penis into the vagina . . .; coitus, copulation”). 

The New Hampshire Supreme Court relied on a similarly 

imprecise dictionary definition to conclude that adultery did not

include same-sex sexual infidelity because, in the court’s view, 

adultery requires “sexual intercourse” and sexual intercourse 
Gen. 105] 111

typically means coitus. See Blanchflower, 150 N.H. at 227. For a 

number of reasons, we do not believe that the plain meaning of 

adultery under Maryland law is similarly limited. As the federal 

district court for the District of Maryland explained as far back as 

1955, “the popular meaning” of adultery “has come to be ‘sexual 

unfaithfulness of a married person,’” Evans, 135 F. Supp. at 911 

(quoting Webster’s New International Dictionary), and we suspect 

that the popular meaning of adultery among Americans today 

remains similarly broad. See Bethany Catron, Note, If You Don’t 

Think This Is Adultery, Go Ask Your Spouse: The New Hampshire 

Supreme Court’s Faulty Interpretation of Adultery, 30 U. Dayton 

L. Rev. 339, 339-40 (2005) (arguing that the New Hampshire 

Supreme Court’s definition of adultery does “not represent today’s 

understanding”). 

Moreover, even if we assume that adultery requires “sexual 

intercourse,” it is not entirely clear that sexual intercourse is always 

limited to vaginal intercourse under Maryland law. The General 

Assembly has not defined sexual intercourse in the context of 

adultery, and, in other areas, it has used the term differently in 

different statutory schemes. Under rape and incest statutes that at 

one time used the phrase “carnal knowledge,” Maryland courts 

explained that “carnal knowledge” meant “sexual intercourse” and, 

in that context, both terms meant “actual contact of the sexual 

organs of a man and woman and an actual penetration into the body 

of the latter.” Scott v. State, 2 Md. App. 709, 711 (1968) (quoting 

Robert v. State, 220 Md. 159, 164 (1959)); see also 2002 Md. Laws, 

ch. 26 (Revisor’s Note to CR § 3-321, observing that “the appellate 

courts of the State have determined that ‘carnal knowledge’ and 

‘sexual intercourse,’ defined in this subtitle as ‘vaginal 

intercourse,’ are synonymous”). 

Outside the context of sexual crimes, however, the term 

“sexual intercourse” has various meanings under Maryland law. 

For example, in a 2014 statute criminalizing revenge pornography, 

the Legislature provided that the term “sexual contact” means 

“sexual intercourse, including genital-genital, oral-genital, analgenital, or oral-anal, whether between persons of the same or 

opposite sex.” CR § 3-809(a)(3). This implies that “sexual intercourse” includes at least some non-coital acts. By contrast, a 

provision dating from 1993 that governs adult entertainment in 

Baltimore City distinguishes among “sexual intercourse,” 

“sodomy,” and “oral copulation,” implying that the term “sexual 

intercourse” is limited to vaginal intercourse. See Md. Code Ann., 

Art. 2B § 12-203(a)(2)(i); 1993 Md. Laws, ch. 426. 
112 [100 Op. Att’y 

Finally, the term “sexual intercourse” appears only once in the 

Family Law Article, in a provision governing personal jurisdiction 

to determine the parentage of a child or to establish or enforce a 

child support order. The provision reads: “[T]his state may 

exercise personal jurisdiction over a nonresident individual 

if . . . the individual engaged in sexual intercourse in this State and 

the child may have been conceived by that act of intercourse.” FL 

§ 10-304(a)(6). This language also does not provide much 

guidance. The statute applies only to acts of sexual intercourse that 

can produce a child because the statute involves child support 

proceedings, but it does not necessarily mean that other acts are not

sexual intercourse. The General Assembly simply had no need to 

decide whether those other acts would qualify. 

In sum, even if we were to assume that adultery always 

requires “sexual intercourse,” the General Assembly has never 

categorically limited the meaning of “sexual intercourse” under 

Maryland law to vaginal intercourse. To the contrary, it has 

implied that, at least under some circumstances, the term is much 

broader. See CR § 3-809(a)(3) (revenge pornography). We thus 

cannot define adultery as used in Maryland’s divorce statute based 

solely on the plain meaning of the term and must turn to the 

statute’s purpose for additional guidance. See RTKL Assocs., 380 

Md. at 678.

B. Statutory Purpose 

As explained above, the purpose of adultery as a legal concept 

under the English common law differed dramatically from its 

purpose under English canon law. Although Maryland’s courts 

have never “decided whether the crime of adultery . . . embraces 

the common law or canon law definition,” Payne, 33 Md. App. at 

714,3

 the canon law definition is the only relevant one in the 

domestic relations context because it governed divorce and 

alimony proceedings in England at the time of our Independence. 

English “canon law” as it applied to “this branch of matrimonial 

causes . . . became a part of the common law, and as such is 

recognized and adopted by the declaration of rights and 

Constitution of this State as part of the law of the land.” Childs v. 

 

3

 In 1955, a federal district court, applying Maryland law, 

hypothesized that Maryland likely intended to adopt the common law 

definition for purposes of its criminal statute because “anticlerical 

feeling was high” in the State at the time the law was enacted. Evans, 

135 F. Supp. at 911. But Maryland law governs in this context, and 

Payne later made clear that the Maryland courts have not yet made that 

decision in the criminal law context. 
Gen. 105] 113

Childs, 49 Md. 509, 514 (1878); see Md. Decl. of Rights § 5 

(providing that “the Inhabitants of Maryland are entitled to the 

Common Law of England”). The Court of Appeals accordingly 

made clear as early as 1870 that divorce proceedings “should be 

governed by the principles of the English ecclesiastical courts 

insofar as those principles were consistent with Maryland statutes.” 

Thomas v. Thomas, 294 Md. 605, 611 (1982) (citing J.G. v. H.G., 

33 Md. 401, 406-07 (1870)). 

It comes as little surprise, therefore, that the Court of Special 

Appeals has explicitly adopted the broad canon law definition for 

purposes of Maryland’s divorce statute, concluding that “‘adultery’ 

as used in the divorce statute is not restricted to its common law 

meaning but has the more general meaning of voluntary sexual 

intercourse between a married person and a partner other than the 

lawful husband or wife.” Flood, 24 Md. App. at 396 n.1. Although 

the court in Flood did not directly address whether “voluntary 

sexual intercourse” included sexual acts other than coitus or 

encompassed sexual infidelity between persons of the same sex, we 

see no logical reason in the family law context to limit the 

definition so as to exclude those acts. 

As the Court of Appeals has recognized, the purpose of the 

prohibition on adultery in the English ecclesiastical tradition was 

“to devise some means to punish the offending party” for “a 

flagrant breach of the marriage vow” and “to relieve the innocent 

one from the ties of a contract so incontestably violated.” Ridgley 

v. Ridgley, 79 Md. 298, 301 (1894). This purpose is implicated to 

the same degree whether the offending spouse has sex with a man 

or a woman. After all, “[a]n extramarital relationship . . . is just as 

devastating to the [injured] spouse irrespective of the specific 

sexual act performed by the promiscuous spouse or the sex of the 

new paramour.” S.B., 258 N.J. Super. at 156. 

The Circuit Court for Montgomery County made essentially 

the same point in Schadegg, holding that “extramarital homosexual 

affairs violate the same trust as extramarital heterosexual affairs,” 

and “to opine otherwise would be to promote form over substance, 

the victimizer over the victim, and fiction over fact.” Schadegg, 

slip op. at 2-3. The circuit court also rejected an argument based 

on the old, common law view of adultery. The court reasoned that 

it did not matter that “homosexual affairs cannot produce bastardly 

offspring” because this “distinction” might have been “relevant for 

feudal dowry or issues of inheritance” but was of “no consequence” 

in the modern era. Id. Although the court acknowledged that 
114 [100 Op. Att’y 

“traditional notions of sexual intercourse” might normally require 

“inter-gender organ penetration,” it noted that this narrow 

definition “ignores the evolution of adultery” and also ignores that 

a same-sex affair “damages the foundations of the marriage” in the 

same way as do all extramarital affairs. Id. 

We agree with the circuit court’s reasoning. To begin with, it 

is consistent with the Court of Appeals’ long-held view that the 

goal of the divorce statute is “to relieve the innocent one from the 

ties of a [marriage] contract” that has been “so incontestably 

violated.” See Ridgley, 79 Md. at 301. It is also consistent with 

the majority of the decisions of other states’ courts that have 

addressed the question of whether same-sex extramarital conduct 

constitutes adultery. See, e.g., S.B., 258 N.J. Super. at 156-57; 

RGM, 306 S.C. at 149; M.V.R. v. T.M.R., 454 N.Y.S.2d 779, 783 

n.10 (N.Y. Sup. Ct. 1982); Owens v. Owens, 247 Ga. 139, 140 

(1981); Patin v. Patin, 371 So.2d 682, 683 (Fla. Dist. App. Ct. 

1979); Rera v. Rera, 420 N.Y.S.2d 127 (N.Y. Sup. Ct. 1979); 

Adams v. Adams, 357 So.2d 881, 882-83 (La. Ct. App. 1978); cf.

Dunn v. Contributory Ret. Appeal Bd., 46 Mass. App. Ct. 359, 363 

(1999) (referring to extramarital same-sex conduct as “adulterous 

behavior”). 

Although these decisions from other states involved married 

couples of the opposite sex who committed sexual acts with 

persons of the same sex, we think their conclusions carry just as 

much weight in the context of same-sex marriages, particularly 

now that marriage equality is the law of the land. See Obergefell 

v. Hodges, 135 S. Ct. 2584 (2015). Given that same-sex couples 

have the right to marry on equal terms with opposite-sex couples, 

it makes little sense to say that same-sex infidelity does not 

constitute a breach of the marriage vow. It makes even less sense 

to conclude that same-sex sexual infidelity does not constitute 

adultery for purposes of FL § 7-103 when that interpretation would 

make it nearly impossible for same-sex couples to qualify for 

divorce on that ground. The enactment of the Maryland’s Civil 

Marriage Protection Act in 2012, see 2012 Md. Laws, ch. 2, was 

intended to ensure that same-sex couples were treated equally 

under the State’s marriage laws, and a narrow reading of adultery 

in this context would run counter to the express goal of this more 

recent enactment.4

 “To strictly adhere to” an outdated conception 

 

4

 We recognize that, in 1998, a bill proposing to clarify that adultery 

includes sexual acts other than coitus was rejected. See 1998 Leg. Sess., 

H.B. 15. But we decline to read much into the rejection of this 

legislation. Legislative intent usually cannot be reliably “drawn from the 
Gen. 105] 115

of adultery in this context “is to avert one’s eyes from the sexual 

realities of our world.” See Blanchflower, 150 N.H. at 230 (Brock, 

C.J. & Broderick, J., dissenting). 

What is more, only a handful of cases in other states have 

come to the opposite conclusion. Those cases rely primarily on outof-context definitions of “sexual intercourse” from criminal 

statutes or vague, generally-worded dictionary definitions. See In 

re Blanchflower, 150 N.H. at 227 (relying on ambiguous dictionary 

definition under New Hampshire law); Glaze v. Glaze, 46 Va. Cir. 

at 333 (relying on Virginia criminal law); Cohen v. Cohen, 103 

N.Y.S.2d 426, 427-28 (N.Y. Sup. Ct. 1951) (relying on New York 

criminal law). The most recent of these cases, Blanchflower, is 

distinguishable on other grounds as well. In that case, the New 

Hampshire Supreme Court based its decision in part on the fact 

that, under that state’s divorce law, the adultery provision was 

premised on a “specific act” and was not “based upon the 

fundamental concept of marital loyalty and public policy’s disfavor 

of one spouse’s violation of the marriage contract with another.” 

150 N.H. at 228-29. Here in Maryland, however, the Court of 

Appeals has for more than 140 years recognized precisely the 

opposite; the prohibition of adultery within the Maryland family 

law context is based upon the concept of marital loyalty. See 

Ridgley, 79 Md. at 301. We therefore do not think that the Court 

of Appeals would find Blanchflower or the other out-of-state cases 

persuasive in interpreting Maryland law. 

 

subsequent failure of the General Assembly to enact proposed 

legislation.” 77 Opinions of the Attorney General 110, 115 (1992). This 

is because “several equally tenable inferences could be drawn from the 

failure . . . to adopt an amendment . . . including the inference that the 

existing legislation already incorporated the offered change.” Id.

(quoting United States v. Wise, 370 U.S. 405, 411 (1962)). Indeed, here, 

there are at least two reasons why the Legislature may have rejected the 

bill that do not conflict with our interpretation of the statute. First, the 

General Assembly was aware of the 1997 Montgomery County Circuit 

Court decision and may have thought that the courts were correctly 

interpreting the statute as written. Second, a contemporaneous press 

account of the hearing indicates that the members may have been more 

concerned about another aspect of the bill—a controversial proposal to 

decriminalize adultery—and the bill may have been rejected for that 

reason. See Marquita Smith, Pols Asked to Modernize Adultery Law, 

Montgomery Journal (Jan. 29, 1998). 
116 [100 Op. Att’y 

We recognize that a broader definition of adultery might force 

the courts to draw some uncomfortable new lines. A definition of 

adultery like “extramarital intimate sexual activity with another,” 

for example, might require “judges and masters to decide just what 

individual acts are so sexually intimate as to meet the definition.” 

See Blanchflower, 150 N.H. at 229. But we do not believe that it 

would be nearly as difficult to draw those lines as the New 

Hampshire court feared. One option, for instance, might be to rely 

on the definition of “sexual intercourse” from Maryland’s recentlyenacted revenge pornography statute, which may well reflect the 

General Assembly’s current views on the topic. See CR § 3-

809(a)(1)(3) (specifically including “genital-genital, oral-genital, 

anal-genital, or oral-anal” as types of “sexual intercourse”). 

Although we do not purport to choose a specific definition on 

behalf of the Legislature or the courts, a definition along these lines 

seems workable and would be consistent with the purpose of the 

statute. 

Furthermore, and perhaps most importantly, a plaintiff in a 

divorce action is not required to provide direct evidence of the 

sexual act; it is sufficient to establish by circumstantial evidence 

that the sexually unfaithful spouse and his or her paramour had the 

“disposition” and “opportunity” to commit adultery. See, e.g., 

Pohzehl, 205 Md. at 406; Meininger v. Meininger, 198 Md. 432, 

434 (1951) (explaining that there need not be “direct proof of actual 

intercourse”); see also Blanchflower, 150 N.H. at 231 (Block, C.J. 

and Broderick, J., dissenting) (making a similar point under New 

Hampshire law). A spouse seeking a divorce based on oppositesex infidelity therefore usually does not need to prove any details 

about specific sexual acts. 

We see no reason under the statutory scheme why a spouse 

whose partner had an affair with someone of the same sex would 

have to meet a higher burden by proving such details. As in the 

context of opposite-sex adultery, once the court finds that at least 

some type of sexual activity between two persons of the same sex 

constitutes adultery, the question as to which specific acts suffice 

will often be academic. The admission that the accused adulterer 

engaged in one sexual act, for instance, might provide 

circumstantial evidence that he or she had the disposition and 

opportunity to engage in others. It seems unlikely that the 

Legislature would have intended to allow a party to “defend against 

an adultery charge [in a divorce proceeding] by arguing that, while 

he or she engaged in intimate sexual activity with another, the 

relationship was not adulterous because it did not involve coitus.” 
Gen. 105] 117

See Blanchflower, 150 N.H. at 233 (Block, C.J. and Broderick, J., 

dissenting). 

We accordingly conclude that Maryland courts will likely 

define adultery, at least in the family law context, to encompass 

more than just vaginal intercourse between a man and a woman. In 

our view, the courts will define adultery to include other types of 

sexual infidelity, both between persons of the opposite sex and 

between persons of the same sex. The General Assembly, to erase 

any doubt on the matter, could always clarify the definition through 

legislation, but we think that FL § 7-103 as it currently reads would 

encompass same-sex sexual infidelity. 

C. The Need to Avoid Constitutional Questions 

The conclusion we reach also avoids a potential constitutional 

question as to whether defining adultery to exclude same-sex 

infidelity discriminates on the basis of sexual orientation in 

violation of the Equal Protection Clause. See, e.g., Koshko, 398 

Md. at 425 (explaining that, if at all possible, Maryland courts will 

usually construe statutes to avoid constitutional questions). Over 

the last few decades, the Supreme Court has looked with increasing 

skepticism upon laws that discriminate against gays and lesbians. 

See Romer v. Evans, 517 U.S. 620 (1996) (striking down a state 

constitutional amendment that prohibited any state entity from 

enacting any law or instituting any policy to grant protected status 

to gays, lesbians, and bisexuals); Lawrence v. Texas, 539 U.S. 558 

(2003) (striking down a Texas statute criminalizing sodomy); 

United States v. Windsor, 133 S. Ct. 2675 (2013) (striking down 

the federal Defense of Marriage Act (“DOMA”)). 

More recently, the Supreme Court held that same-sex couples 

have a fundamental right to marry and struck down state laws 

prohibiting same-sex marriage “to the extent they exclude samesex couples from civil marriage on the same terms and conditions 

as opposite-sex couples.” Obergefell, 135 S. Ct. at 2604-05 

(emphasis added). The right to civil marriage would ring hollow if 

states could treat same-sex married couples differently than 

opposite-sex ones, providing special benefits to, or imposing 

special burdens on, one category but not the other. As the Court 

emphasized, “[s]ame-sex couples seek in marriage the same legal 

treatment as opposite-sex couples, and it would disparage their 

choices and diminish their personhood to deny them this right.” Id.

at 2602 (emphasis added); see also Lawrence, 539 U.S. at 575 

(disavowing the Court’s own precedent on the validity of a sodomy 
118 [100 Op. Att’y 

law as “demeaning to the lives of homosexual persons”); Windsor, 

133 S. Ct. at 2693 (finding that DOMA “interfere[d] with the equal 

dignity of [same-sex] marriages”). 

We think an overly narrow definition of adultery that excludes 

same-sex sexual activity, and makes it more difficult for same-sex 

couples to divorce, may raise similar constitutional problems. See 

Nicolas, supra, at 126 (a narrow definition based on the common 

law concept of adultery “demeans the value of same-sex 

relationships” by suggesting that it is not important to “protect their 

formal, legal relationships from the harms associated with 

adulterous conduct”). We need not decide, however, whether a 

court would ultimately find a constitutional violation if adultery 

were limited to sexual activity between a man and a woman. 

Rather, the point is that there is a legitimate question as to the 

constitutionality of defining adultery to exclude same-sex sexual 

activity, and this makes it even more likely that Maryland courts 

would choose a broader definition. See Koshko, 398 Md. at 425.5

 

III 

Conclusion 

We conclude, for purposes of Maryland family law, that the 

term “adultery” includes a spouse’s extramarital sexual infidelity 

with a person of the same sex. In our view, this conclusion is 

compelled not only by the broad purposes behind the concept of 

adultery in the family law context, but also by the respect and 

dignity owed to same-sex marriages as equal to opposite-sex 

marriages under State law. We see no reason either to define 

adultery so narrowly as to ignore “the sexual realities of our world,” 

see Blanchflower, 150 N.H. at 230 (Brock, C.J. & Broderick, J., 

 

5

 Although we have not addressed the meaning of “adultery” under 

our State’s criminal law, we note that the analysis might be different in 

that context because Maryland’s courts have not determined whether the 

criminal statute adopted the common law or canon law definition of 

adultery, see Payne, 33 Md. App. at 714, and because the “rule of lenity” 

requires courts “to construe ambiguous criminal statutes in favor of 

criminal defendants,” Alexis v. State, 437 Md. 457, 484-85 (2014). That 

said, these same constitutional concerns would apply in the criminal 

context, and we think that the narrow common law purpose behind 

adultery laws has become less important in recent years. See Nicolas, 

supra, at 110-11. Still, if the General Assembly is concerned about the 

application of the criminal prohibition against adultery to same-sex 

couples, it may wish to consider amending the statute or repealing it 

altogether. 
Gen. 105] 119

dissenting), or to deny same-sex couples the ability to divorce on 

the same terms as other married couples. 

Brian E. Frosh 

Attorney General of Maryland 

Patrick B. Hughes 

Assistant Attorney General 

Adam D. Snyder 

Chief Counsel, Opinions & Advice