On April 1, 2021, we won a major victory in the NH Supreme Court that made the national news, receiving coverage in the ABA Journal, NH Public Radio, the Union Leader newspaper, and elsewhere. We even found our way into Wikipedia.
In In re Blaisdell, decided on April 1, the New Hampshire Supreme Court addressed what we will call a “question of second impression:” Does a same-sex extramarital affair constitute adultery? It’s a question that most spouses likely would agree answers itself: “Umm, yes.” But that is not how the Court answered the question 18 years ago. In 2003, a divided Court narrowly held in the Blancheflower case that same-sex affairs do not give rise to a fault-based ground for divorce.
Blancheflower reminds us that law, like science, does not always produce intuitive or easily predictable outcomes. How could Blancheflower, a 3-2 decision, have been that difficult to decide as recently as 2003? But back when the relevant statutes were enacted, ordinary dictionary definitions of “adultery” (“sexual intercourse” outside of marriage) limited the concepts to heterosexual couplings. Specifically, the Blancheflower majority explained, the original 1961 edition of Webster’s Third New International Dictionary endorsed that narrow view. But that dictionary is well-known (or notorious, depending on your perspective) for being a “descriptive” dictionary rather than a “prescriptive” dictionary (that means that it tells us how words are actually used by real people in modern society, as opposed to how academics and experts think we should use the word). As it turned out, by 2003, revisions to that dictionary had already expanded the concept of “sexual intercourse” to non-heterosexual couples.
Nevertheless, changing dictionary definitions couldn’t help us with the crux of the problem presented by the Blaisdell appeal: Statutes are not constitutional provisions. Even if the meaning of words and the contours of our civilization change over time, can the meaning of a statute change over time, without legislative intervention? But the Legislature had, of course, intervened. Applying the doctrine of stare decisis, the Court recognized that the Legislature fundamentally transformed the marital laws when it adopted civil unions, and then gay marriage, just six years after Blancheflower. How could the Legislature have granted gay people the privileges, but not the responsibilities, of marriage? And thus, the Court unanimously overruled Blancheflower, and made its ruling retroactive.
And we hastily ordered the newest edition of Webster’s.
Read the NH Supreme Court's Decision
Read our brief on appeal: 2020-07-13-Blaisdell-Brief (without Addendum)
Read the ABA Journal coverage: ABA Journal-Blaisdell coverage-Top state court recognizes same-sex adultery as grounds for divorce
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