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Jacob M. Appel Headshot

Hate the Husband? Sue the Mistress!

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Earlier this summer, after news broke of former Mississippi Congressman Chip Pickering's alleged affair with college sweetheart Elizabeth Creekmore Byrd, Pickering's wife transformed a personal tragedy into a public farce by suing her husband's purported lover under Mississippi's antiquated "alienation of affection" law.

Now North Carolina has proven that the New South is still capable of old tricks, "modernizing"--but not repealing--its own "alienation of affection" statute. Such causes of action, vestiges of legal codes that also prohibited divorce and criminalized premarital sex, provide a consummate example of the sort of private controversies in which the government has no business meddling.

Unfortunately, an unlikely alliance of trial lawyers and Christian fundamentalists continues to defend the prerogative of jilted spouse to turn love triangles into quadrangles--with the state judicial system serving as an ungainly fourth wheel. Yet the publicity surrounding the Dickensian-named case of Pickering v. Pickering may prove the best hope in a generation to curtail such misguided suits.

Washington insiders have already done their share of snickering as the Pickerings' bickering degenerated into dickering. After all, Congressman Pickering built his political career as an outspoken conservative and former Southern Baptist missionary who sported his religious stripes on his sleeves. He was widely regarded as Governor Haley Barbour's favored choice to replace the retiring Trent Lott in the United States Senate--an opportunity that Leisha Pickering alleges her husband turned down in order to continue his extramarital affair.

From a public relations standpoint, it appears that Congressman Pickering also trysted in the wrong place at the wrong time: He lived alongside embattled Nevada Senator John Ensign in the complex at 133 C Street that has become for infidelity what the Harding era's Little Green House on K Street once was to political corruption. By the time Mrs. Pickering filed her lawsuit, her disgraced husband--once a darling of the Christian Right--had become a poster child for the Christian Wrong.

In most states, the matter might have ended there. But Congressman Pickering's mistress turned out to be a wealthy woman whose family owns Cellular South. So Mrs. Pickering has opted to soothe her heartbreak inside Ms. Creekmore Byrd's deep pockets.

Far harder to explain is North Carolina's recent decision to retain its own "alienation of affection" statute. That state's relatively progressive governor, Beverly Purdue, approved legislation that would narrow the state's law to exclude couples who have already separated, but have not yet divorced. Businesses and commercial enterprises also may no longer be sued for tortuous interference with marriage. Alas, the legislation only applies from October 1, 2009, onward--so previous transgressors, such as alleged John Edwards paramour Rielle Hunter, could still face such litigation. Whatever else one might say about Tar Heel lawmakers, no one can accuse them of going soft on adultery.

Adultery itself is still illegal in many states, but these criminal statutes are sporadically enforced. Law Professor Jonathan Turley has written compellingly that they are also likely unconstitutional in the wake of the Supreme Court's legalization of sodomy in Lawrence v. Texas, although that didn't stop Virginia from prosecuting John Bushey in 2004, a sordid case which concluded with the defendant pleading guilty and paying a $125 fine plus $36 in court costs. Not exactly a public stoning. (The exception to the rarity of infidelity prosecutions is in the United States military, which continues to target adulterers; men who covet their neighbors' wives are no more welcome in our Armed Forces than girls who sleep with girls or boys with flat feet.) In contrast, lawsuits for "alienation of affection" and "criminal conversion" remain surprisingly common.

More than two hundred such suits are filed each year in North Carolina alone. The verdicts can have devastating financial effects on the lives of the defendants, but often prove great windfalls for the cuckolded parties. For example, betrayed wife Christine Cooper of Greensboro, North Carolina, won a $2,000,000 judgment against her husband's lover in 2001. Davidson College wrestling coach Thomas Oddo garnered $1.4 million from Florida physician Jeffrey Presser that same year after the doctor "stole" his wife's heart. In Mississippi, the state's Supreme Court upheld a $700,000 judgment against businessman Jerry Fitch for seducing the married Sandra Valentine.

In addition to North Carolina and Mississippi, six other states still permit lawsuits for either "alienation of affection" or its sister sin, "criminal conversation"--in which conversation is a polite legal euphemism for sexual intercourse. Moreover, "alienation of affection," unlike "criminal conversation," does not even require physical contact. Effective flirting will suffice. Needless to say, residents of Hawaii, Illinois, New Hampshire, New Mexico, South Dakota, and Utah should be careful whom they entice. So should tourists and business travelers who happen to pass through these jurisdictions.

Some argue that we live in a "center-right" country. The reality is that we live in a "center-left" country governed by center-right laws. Most sensible people--including many deeply troubled by infidelity--view the notion of suing your spouse's lover as rather asinine. (The exception is State Senator Jake Knotts of South Carolina, who recently proposed reestablishing an "alienation of affection" tort in his home state, where in 1992 the Supreme Court had declared an earlier law invalid. As Knotts sees matters: "We protect our automobiles. We protect our homes. There's laws to protect everything and we just need laws to protect the family.")

The problem is that husbands and wives aren't chattel. True love cannot be bought and sold. Even if such litigation does deter infidelity--a highly dubious notion, as passion tends to be a far stronger force than civic virtue--it is not at all clear why this is a proper role for government. Just because conduct is distasteful does not mean it automatically deserves legal redress. Just ask the citizens of Sterling, Iowa, who make their town a laughingstock in the media several years ago with their quixotic effort to criminalize lying.

I feel genuinely sorry for Leisha Pickering. First, she squandered half her life in the company of New Hebron, Mississippi's very own Elmer Gantry. Now, in order to win her bizarre lawsuit, she must prove that Ms. Creekmore Byrd pilfered her husband's love. In response, all that the defendant must show is that the Pickerings' marriage failed for reasons independent of her own conduct--that she was a symptom rather than a cause. For example, she could argue that Mrs. Pickering had lost her looks. Or that Congressman Pickering had never truly loved his wife from the outset. Not pleasant claims. But that's what you open yourself up to when you start using the judicial system as a mechanism for personal vengeance.

The unfortunate reality is that the case of Pickering v. Pickering, already under seal, will likely settle before such titillating matters can be litigated. And Mrs. Pickering may have the final laugh, as she will walk away a rich divorcee while Ms. Creekmore Byrd gets stuck with the man that she bargained for. After all, husbands, like golfers, rarely cheat but once.

The real losers from such an outcome, of course, will be the citizens of Mississippi, who will have missed out on a chance to rid themselves of this wacky and invasive law. A far better result would be for Ms. Creekmore Byrd to challenge Mississippi's "alienation of affection" statute as a violation of the United States Constitution. In the post-Lawrence era, she might win. And well she should. The consensual conduct of adults in their own bedrooms ought to be their own business, and maybe that of their spouses, not a matter to be deliberated over by a jury of meddlesome peers.