Supreme Court ruling recognizes same-sex adultery
Apr. 2—CONCORD — In a unanimous ruling, the state Supreme Court on Thursday expanded the definition of the term adultery to apply to a spouse engaged in same-sex infidelity.
The four justices overturned a 2003 decision that limited adultery to intercourse between members of the opposite sex.
The issue arose in a divorce case in Manchester Family Court between Molly and Robert Blaisdell. A circuit court judge had determined that Mrs. Blaisdell's alleged infidelity with another woman did not fit the definition of adultery set by the earlier court decision. Thursday's ruling overturned that decision.
"It was an antiquated law. It was offensive to gay people," said Concord lawyer Ted Lothstein, who argued on behalf of the husband.
In an eight-page ruling, the justices examined the evolving legal and dictionary definitions of the terms adultery and intercourse. A key fact in their decision was the move by the Legislature in 2009 to allow same-sex marriage.
It would be incongruous, wrote Justice Patrick Donovan, for New Hampshire to allow same-sex marriage but to recognize only opposite-sex adultery.
"Such an interpretation would not effectuate the statute's overall purpose of protecting the marital promise of fidelity in all legally recognized marriages and would lead to an absurd and unjust result," he wrote.
Because the decision overturned the 2003 ruling — in Blanchflower & Blanchflower — Donovan provided a four-part analysis.
"In sum, the view of the institution of marriage underpinning our holding in Blanchflower has changed in the eyes of the law and society," Donovan wrote.
Donovan noted that law and public opinion around same-sex marriage was already changing in 2003. And he quoted the judge who wrote the dissenting opinion in the case, former Chief Justice David Brock: "To strictly adhere to the primary definition of adultery in the 1961 edition of (the dictionary) ... is to avert one's eyes from the sexual realities of our world," wrote Brock in a decision joined by then-Associate Justice John Broderick.
The Blaisdell case involves an at-fault divorce allegation.
New Hampshire recognizes both no-fault and at-fault divorces. With at-fault divorce, a spouse alleges actions, such as adultery, that can challenge the expectation that marital assets will be divided equally, Lothstein said.
Lothstein said it's impossible to tell how many cases will be affected by the ruling, but he said he received congratulatory telephone calls all day.
The case now returns to the divorce court.
Meanwhile, Robert Blaisdell, 46, still awaits trial on misdemeanor charges involving an alleged domestic assault in 2019. In December, a judge refused a prosecutor's efforts to delay the trial and ordered it proceed. But then the courts shut down as a second wave of the coronavirus pandemic rolled through the state.
Trials have resumed, but most courts are focusing their attention on jailed defendants. Blaisdell, a prominent lobbyist who lost his job following the arrest, has been free on bail.
"We continue to seek a trial as soon as possible," said his lawyer, Richard Guerriero of Concord.
