Gen. 105] 105

FAMILY LAW

D IVORCE

– W HETHER S AME -S EX M ARITAL I NFIDELITY C AN Q UALIFY AS A DULTERY FOR P URPOSES OF F AMILY L AW
P ROVISIONS G OVERNING D IVORCE

July 24, 2015

The Honorable Luke Clippinger Maryland House of Delegates

You have asked whether the term “adultery” under Ma ryland law includes a spouse’s extramarital sexual infidel ity with a person of the same sex. Although the concept of adultery has significance in both criminal law and family law, the State’s cr iminal prohibition against adultery has fallen into disuse , so we will focus on the definition of adultery for purposes of Maryl and family law. In our opinion, adultery, as that term is used in t he Family Law Article, includes a spouse’s extramarital sexual co nduct with

someone of the same sex.

We base this conclusion in large part on the purpos e behind adultery laws in the domestic relations context. T he 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 injure d party should be allowed to dissolve the marriage more easily tha n 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 activit y with someone of the opposite sex. We accordingly believe that M aryland courts would recognize same-sex sexual infidelity as adult ery.

I

Background

A. Adultery as a Legal Concept Under Maryland Law

Most people are familiar with adultery as a moral c oncept, but it is also relevant as a legal concept under Maryla nd law. It is one of only a few so-called “fault” grounds on which sp ouses may obtain an absolute divorce without first living “se parate 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 and106 [100 Op. Att’y

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

that “the circumstances that contributed to the est rangement 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 prohi bition on adultery, as far as we can tell, has not been enfor ced in a long time.

See Md. Code Ann., Crim. Law (“CR”) § 10-501 (2012 Repl . Vol., 2014 Supp.) (providing that “[a] person may not com mit 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 cri minal prosecution for adultery). The significance of adu ltery within Maryland criminal law has diminished over time in o ther ways as well. For example, a criminal defendant could at o ne time claim that his or her spouse’s adultery was legally adequ ate “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 ano ther does not constitute legally adequate provocation”). Neverth eless, adultery remains an important concept in Maryland family law , and the answer to your question thus has significant real-w orld 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 E ngland and the United States provides useful guidance abou t how courts might view the concept today. Adultery was not a c rime under English common law. Peter Nicolas, The Lavender Letter: Applying the Law of Adultery to Same-Sex Couples an d 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 impre gnated by a third party male, the husband’s issue would be seve rely 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 mi ght 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 husba nd to recoverGen. 105] 107

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

supra , at 106.

Not surprisingly, the common-law definition of adul tery reflected this highly gendered purpose: Adultery r eferred only to

sexual intercourse between a married woman and a ma n 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 enga ge 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 t he married

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

387.

England’s ecclesiastical courts, which had jurisdic tion over divorce and alimony proceedings, saw adultery throu gh a different lens. They “viewed the evil of extramarital sex” a s “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 ec clesiastical courts defined adultery to include sexual intercourse betw een 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 o f 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 o ther men’s children, it appears that these early American crim inal laws may

1 Given the era in which the canon law operated, th at “someone other than his or her spouse” typically referred to someo ne of the opposite sex. See, e.g.

, Holland , 145 S.W. at 523 (explaining the definition of adu ltery

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 t he adulterous connection is a man or a woman” (emphasis added)).108 [100 Op. Att’y

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

morals.” Id. Many other colonies and, later, states also enact ed criminal statutes. Some of these statutes expressl y adopted the common law definition, some expressly adopted the c anon law definition, some adopted a hybrid of the two defini tions, and some, like Maryland, simply prohibited adultery without d efining 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 prohibiti on 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 offender s 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 d id 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 gende rspecific common law definition. Most states appear to have adopted the broader canon law definition in the fam ily law context, which makes sense given that this definition had go verned divorce and alimony proceedings in England. See, e.g.

, Evans , 135 F. Supp. at 911 (explaining that, unlike under the com mon law, “[t]he term ‘adultery’ in divorce law in this country incl udes the act of a married man who has intercourse with a single woman ”). As explained further below, Maryland is one of these s tates. See Flood

v. Flood , 24 Md. App. 395, 396 n.1 (1975). Similarly, in t he criminal context, many states have replaced their f ormer common law definitions with ones that are not gender-speci fic or have repealed their criminal prohibitions altogether. See Nicolas, supra

, at 100, 108-09.

More recently, states have begun to answer the ques tion 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. Cour ts in other states have reached conflicting results in this are a. See, e.g., In re Blanchflower , 150 N.H. 226, 227 (2003) (concluding that adulter y is limited to vaginal intercourse); Glaze v. Glaze , 46 Va. Cir. 333Gen. 105] 109

(1998) (same); S.B. , 258 N.J. Super. at 157 (holding that, under New Jersey law, adultery includes same-sex sexual i nfidelity);

RGM v. DEM , 306 S.C. 145, 149 (1991) (same); Menge v. Menge, 491 So.2d 700 (La. App. 5th Cir. 1986) (holding tha t sexual acts other than vaginal intercourse between members of o pposite 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 op portunity to decide whether extramarital sexual infidelity be tween two persons of the same sex constitutes “adultery” unde r 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 d ivorce, but it did not address whether that activity might also consti tute adultery.

See Richardson v. Richardson , 17 Md. App. 665, 670 (1973). To our knowledge, the only Maryland court that has add ressed the issue is the Circuit Court for Montgomery County, w hich 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 resolve d 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 b etween 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 car nal act itself can

2 As noted above, we focus on the definition under the Family Law Article, rather than the criminal statute, beca use the criminal statute is apparently no longer enforced in Marylan d. The only situation in which the criminal statute might still be relevant is when a witness attempts to invoke the Fifth Amendme nt protection against self-incrimination to avoid admitting possi ble 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 “e mbraces 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 s uggests that our appellate courts have not yet determined w hether adultery is limited to coition, even in the criminal context . In that context, the Court of Special Appeals concluded that the def inition 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 permitt ing the defendant to prove legally adequate provocation. Dennis , 105 Md. App. at 698. The court declined, however, to decide whethe r sexual intercourse “might properly include any conduct other than

coition.” Id. (emphasis in original). We are thus left to inter pret the term “adultery,” as it appears in FL § 7-103, u sing 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 b egin 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 indi cia 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 an swer to your question. The General Assembly has not define d 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 mi ght be broad enough to encompass sexual activity other than vagi nal intercourse, they tend to use general terms and do not address t he issue squarely.

See

, e.g. , Webster’s Encyclopedic Unabridged Dictionary of t he English Language 28, 1755 (1996) (defining “adulter y” to mean “voluntary sexual intercourse between a married per son and someone other than his or her lawful spouse,” and t hen 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 ad ultery did not include same-sex sexual infidelity because, in the court’s view, adultery requires “sexual intercourse” and sexual i ntercourseGen. 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 explain ed as far back as 1955, “the popular meaning” of adultery “has come t o be ‘sexual unfaithfulness of a married person,’” Evans , 135 F. Supp. at 911 (quoting Webster’s New International Dictionary), a nd we suspect that the popular meaning of adultery among American s 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 Ha mpshire Supreme Court’s definition of adultery does “not re present 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,” Maryla nd courts explained that “carnal knowledge” meant “sexual int ercourse” and, in that context, both terms meant “actual contact o f 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 tha t “the appellate

courts of the State have determined that ‘carnal kn owledge’ 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 Mar yland law. For example, in a 2014 statute criminalizing reveng e pornography, the Legislature provided that the term “sexual cont act” means “sexual intercourse, including genital-genital, ora l-genital, analgenital, or oral-anal, whether between persons of t he same or opposite sex.” CR § 3-809(a)(3). This implies tha t “sexual intercourse” includes at least some non-coital acts. By contrast, a provision dating from 1993 that governs adult enter tainment in Baltimore City distinguishes among “sexual intercou rse,” “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 person al jurisdiction to determine the parentage of a child or to establi sh or enforce a child support order. The provision reads: “[T]his state may exercise personal jurisdiction over a nonresident i ndividual if . . . the individual engaged in sexual intercour se in this State and the child may have been conceived by that act of in tercourse.” FL § 10-304(a)(6). This language also does not provide much guidance. The statute applies only to acts of sexu al intercourse that can produce a child because the statute involves ch ild support proceedings, but it does not necessarily mean that other acts are not sexual intercourse. The General Assembly simply ha d no need to decide whether those other acts would qualify.

In sum, even if we were to assume that adultery alw ays requires “sexual intercourse,” the General Assembly has never categorically limited the meaning of “sexual interc ourse” under Maryland law to vaginal intercourse. To the contra ry, it has implied that, at least under some circumstances, th e term is much

broader. See CR § 3-809(a)(3) (revenge pornography). We thus cannot define adultery as used in Maryland’s divorc e statute based solely on the plain meaning of the term and must tu rn 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 le gal 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 divo rce and alimony proceedings in England at the time of our I ndependence. English “canon law” as it applied to “this branch o f matrimonial causes . . . became a part of the common law, and a s such is recognized and adopted by the declaration of rights and Constitution of this State as part of the law of th e land.” Childs v.

3 In 1955, a federal district court, applying Maryl and law, hypothesized that Maryland likely intended to adopt the common law definition for purposes of its criminal statute bec ause “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 t his 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 en titled to the Common Law of England”). The Court of Appeals acco rdingly made clear as early as 1870 that divorce proceeding s “should be governed by the principles of the English ecclesias tical courts insofar as those principles were consistent with Ma ryland 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 Co urt 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 volunta ry 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 th e 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 ecclesiastic al tradition was “to devise some means to punish the offending party ” for “a flagrant breach of the marriage vow” and “to reliev e the innocent one from the ties of a contract so incontestably vi olated.” Ridgley v. Ridgley , 79 Md. 298, 301 (1894). This purpose is implicat ed to the same degree whether the offending spouse has se x with a man or a woman. After all, “[a]n extramarital relation ship . . . is just as devastating to the [injured] spouse irrespective of the specific sexual act performed by the promiscuous spouse or t he sex of the new paramour.” S.B. , 258 N.J. Super. at 156.

The Circuit Court for Montgomery County made essent ially the same point in Schadegg , holding that “extramarital homosexual

affairs violate the same trust as extramarital hete rosexual affairs,” and “to opine otherwise would be to promote form ov er substance, the victimizer over the victim, and fiction over fa ct.” 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 p roduce bastardly offspring” because this “distinction” might have be en “relevant for feudal dowry or issues of inheritance” but was of “ no consequence”

in the modern era. Id. Although the court acknowledged that114 [100 Op. Att’y

“traditional notions of sexual intercourse” might n ormally require “inter-gender organ penetration,” it noted that thi s narrow definition “ignores the evolution of adultery” and also ignores that a same-sex affair “damages the foundations of the m arriage” in the same way as do all extramarital affairs. Id.

We agree with the circuit court’s reasoning. To be gin with, it is consistent with the Court of Appeals’ long-held view that the goal of the divorce statute is “to relieve the inno cent one from the ties of a [marriage] contract” that has been “so in contestably

violated.” See Ridgley , 79 Md. at 301. It is also consistent with the majority of the decisions of other states’ cour ts that have addressed the question of whether same-sex extramar ital 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 ac ts with persons of the same sex, we think their conclusions carry just as much weight in the context of same-sex marriages, p articularly now that marriage equality is the law of the land. See Obergefell v. Hodges , 135 S. Ct. 2584 (2015). Given that same-sex coup les have the right to marry on equal terms with opposit e-sex couples, it makes little sense to say that same-sex infideli ty does not constitute a breach of the marriage vow. It makes even less sense to conclude that same-sex sexual infidelity does no t constitute adultery for purposes of FL § 7-103 when that inter pretation would make it nearly impossible for same-sex couples to q ualify for divorce on that ground. The enactment of the Maryl and’s Civil Marriage Protection Act in 2012, see 2012 Md. Laws, ch. 2, was intended to ensure that same-sex couples were treat ed equally under the State’s marriage laws, and a narrow readi ng of adultery in this context would run counter to the express go al of this more

recent enactment. 4 “To strictly adhere to” an outdated conception

4 We recognize that, in 1998, a bill proposing to c larify 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 reje ction of this legislation. Legislative intent usually cannot be reliably “drawn from theGen. 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 stat es have come to the opposite conclusion. Those cases rely p rimarily on outof-context definitions of “sexual intercourse” from criminal statutes or vague, generally-worded dictionary defi nitions. 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 upo n the fundamental concept of marital loyalty and public p olicy’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 prec isely the opposite; the prohibition of adultery within the Ma ryland family

law context is based upon the concept of marital loyalty. See Ridgley , 79 Md. at 301. We therefore do not think that th e 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 coul d be drawn from the failure . . . to adopt an amendment . . . including the inference that the existing legislation already incorporated the offer ed 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 o f the statute. First, the General Assembly was aware of the 1997 Montgomery C ounty Circuit Court decision and may have thought that the courts were correctly interpreting the statute as written. Second, a con temporaneous press account of the hearing indicates that the members m ay have been more concerned about another aspect of the bill—a contro versial proposal to decriminalize adultery—and the bill may have been r ejected 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 activit y with another,” for example, might require “judges and masters to d ecide 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 Mary land’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-genit al, oral-genital, anal-genital, or oral-anal” as types of “sexual int ercourse”). Although we do not purport to choose a specific def inition on behalf of the Legislature or the courts, a definiti on along these lines seems workable and would be consistent with the pur pose of the

statute.

Furthermore, and perhaps most importantly, a plaint iff in a divorce action is not required to provide direct ev idence of the sexual act; it is sufficient to establish by circum stantial 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 “dire ct proof of actual intercourse”); see also Blanchflower , 150 N.H. at 231 (Block, C.J. and Broderick, J., dissenting) (making a similar po int under New Hampshire law). A spouse seeking a divorce based o n oppositesex infidelity therefore usually does not need to p rove any details about specific sexual acts.

We see no reason under the statutory scheme why a s pouse whose partner had an affair with someone of the sam e sex would have to meet a higher burden by proving such detail s. As in the context of opposite-sex adultery, once the court fi nds that at least some type of sexual activity between two persons of the same sex constitutes adultery, the question as to which spec ific acts suffice

will often be academic. The admission that the acc used adulterer engaged in one sexual act, for instance, might prov ide circumstantial evidence that he or she had the disp osition 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 arg uing 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 l ikely define adultery, at least in the family law context , to encompass more than just vaginal intercourse between a man an d a woman. In our view, the courts will define adultery to includ e other types of sexual infidelity, both between persons of the oppo site sex and between persons of the same sex. The General Assem bly, to erase any doubt on the matter, could always clarify the d efinition through legislation, but we think that FL § 7-103 as it cur rently reads would encompass same-sex sexual infidelity.

C. The Need to Avoid Constitutional Questions

The conclusion we reach also avoids a potential con stitutional question as to whether defining adultery to exclude same-sex infidelity discriminates on the basis of sexual ori entation in violation of the Equal Protection Clause. See, e.g.

, Koshko , 398 Md. at 425 (explaining that, if at all possible, Ma ryland courts will usually construe statutes to avoid constitutional q uestions). 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 s tate laws prohibiting same-sex marriage “to the extent they e xclude 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 woul d ring hollow if states could treat same-sex married couples differe ntly than opposite-sex ones, providing special benefits to, o r 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 th eir 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 validi ty of a sodomy118 [100 Op. Att’y

law as “demeaning to the lives of homosexual person s”); 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 th at excludes same-sex sexual activity, and makes it more difficu lt for same-sex couples to divorce, may raise similar constitutiona l 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 importa nt to “protect their formal, legal relationships from the harms associat ed with adulterous conduct”). We need not decide, however, whether a court would ultimately find a constitutional violat ion if adultery were limited to sexual activity between a man and a woman. Rather, the point is that there is a legitimate que stion as to the constitutionality of defining adultery to exclude s ame-sex sexual activity, and this makes it even more likely that M aryland courts

would choose a broader definition. See Koshko , 398 Md. at 425. 5

III

Conclusion

We conclude, for purposes of Maryland family law, t hat the term “adultery” includes a spouse’s extramarital se xual infidelity with a person of the same sex. In our view, this c onclusion 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 oppo site-sex marriages under State law. We see no reason either to define adultery so narrowly as to ignore “the sexual reali ties of our world,” see Blanchflower , 150 N.H. at 230 (Brock, C.J. & Broderick, J.,

5 Although we have not addressed the meaning of “ad ultery” under our State’s criminal law, we note that the analysis might be different in that context because Maryland’s courts have not det ermined whether the criminal statute adopted the common law or canon la w definition of adultery, see Payne , 33 Md. App. at 714, and because the “rule of leni ty” requires courts “to construe ambiguous criminal sta tutes in favor of criminal defendants,” Alexis v. State , 437 Md. 457, 484-85 (2014). That said, these same constitutional concerns would appl y in the criminal context, and we think that the narrow common law pu rpose behind adultery laws has become less important in recent y ears. See Nicolas,

supra , at 110-11. Still, if the General Assembly is con cerned about the application of the criminal prohibition against adu ltery to same-sex couples, it may wish to consider amending the statu te or repealing it altogether.Gen. 105] 119

dissenting), or to deny same-sex couples the abilit y 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