This may seem to be a rather obscure topic, but it popped up while I was reading Helen Smith’s musings on whether or not pornography should be made illegal and the long term, detrimental effects that it can have on marriage. As a subset of that discussion, she touched on David Friedman’s book, Law’s Order: What Economics Has to Do with Law and Why It Matters. In it, Friedman makes the following observation on prostitution in general and the specific side effects it can have when married men pay for sex outside of marriage. (I specify “men” here only because incidents of women engaging prostitutes are so rare as to be a statistical anomaly. In theory this would apply to either gender.)

Laws making sex outside of marriage illegal improve the bargaining position of women who want to get married, or stay married, or to maintain a strong bargaining position within marriage. Hence it is rational for women to support such laws. It may also be rational for at least some men to support them…A longer-term result of access to sex without marriage may be a partial breakdown of the institution of marriage. If, as seems to be the case, children brought up by two parents end up on average as better people, more valuable trading partners and fellow citizens, than children brought up by one, preserving the institution of marriage may be desirable for men as well as women.

Smith makes some valid criticism of the approach the authors are taking, specifically as to how the question of marital stability should not be an issue of a woman’s “bargaining position” so much as the benefits which stable, two parent households bring to both genders, to children and to society as a whole. But Friedman’s question is still one to consider outside that context. Having entered into a contract with your spouse (for lack of a better term) which has no expiration date, should the violation of that contract by engaging in an extramarital affair be punishable under the law?

It might be easy to try to dismiss this question immediately because of Lawrence v. Texas, which held that sexual activity between consenting adults could not be banned under the law. But that argument is a bit short sighted, since Lawrence was dealing primarily with laws against sodomy and homosexual acts. What if the basis for the law is not based on the sexual act itself, but the breach of contract which it implies? After all, nearly two dozen states still have laws against adultery on the books, with penalties ranging from a fine of a few dollars to prison time. (New Hampshire’s legislature voted to repeal their ban on adultery just this year.)

It’s probably worth arguing that the government has a vested interest in supporting the rights of spouses against such a violation because of the positive effect that marriage can have on children and society in general. It’s true that having one parent is still far better than being a homeless orphan, and many hard working widows and widowers have raised upstanding children, but the benefits of growing up in a stable home with two parents in a loving relationship have been shown in one study after another. Does this give the government enough of a stake to penalize the adulterer in a criminal fashion? It might.

Also, considering such laws as a contract violation can serve to protect the interests of the wronged party, particularly in states with oppressive alimony laws. And in at least some states’ family court systems, such things are taken into consideration. But I’m afraid such an idea runs contrary to the current “arc of history” which takes a much more libertarian view of personal freedoms and a do whatever feels good attitude as long as their is no perceived harm to anyone else. But in the case of adultery, there is harm to others… particularly the faithful spouse and their children. It would be instructive to see such a law passed and run up through the courts in the modern era.