What can you do if your husband or wife cheats on you? Go to a marriage counselor? Seek a divorce? Sue the marital interloper for millions of dollars in damages? The third option is still available in some states through actions euphemistically titled ‘alienation of affection’ and ‘criminal conversation’. This Note tackles their constitutionality in light of the Supreme Court’s growing body of jurisprudence dealing with intimate relations and marital status. Put simply, it attempts to answer the question: Is there a constitutional right to commit adultery? After exploring both the First and Fourteenth Amendments as avenues for establishing this right, this Note explains how states could tailor these torts to pass constitutional scrutiny. It also discusses specific concerns regarding matters of marital choices raised by the Supreme Court’s recent decision in Obergefell v Hodges. Though there is no definite answer, this Note covers as much ground as possible to see if states have any room to constitutionally curtail cuckolding.
H Hunter Bruton, The Questionable Constitutionality of Curtailing Cuckolding: Alienation-of Affection and Criminal-Conversation Torts, 65 Duke Law Journal 755-800 (2016).