North Carolina Court of Appeals Rejects Constitutional Challenge to Alienation of Affections and Criminal Conversation Causes of Action

From the Washington Post:

A jilted husband’s lawsuit against a doctor accused of stealing his wife’s love can proceed after a North Carolina appeals court ruled Tuesday that the husband can continue suing the spouse’s lover, seeking damages.

The state Court of Appeals decision resurrects a lawsuit that a trial judge had thrown out in Forsyth County, whose seat is Winston-Salem. The judge ruled that state law violates a person’s constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults.

North Carolina is one of only about a half-dozen states that still allow lawsuits accusing a cheating spouse’s lover of alienation of affection and criminal conversation.

The Court of Appeals' opinion is here. From the introduction to the opinion:

This case concerns two common law causes of action—alienation of affection and criminal conversation—that permit litigants to sue the lovers of their unfaithful spouses. These laws were born out of misogyny and in modern times are often used as tools for enterprising divorce lawyers seeking leverage over the other side.

Defendant Derek Williams contends that these aging common law torts are facially unconstitutional because they violate individuals’ First and Fourteenth Amendment rights to engage in intimate sexual activity, speech, and expression with other consenting adults.

As explained below, we reject this facial constitutional challenge. Claims for alienation of affection and criminal conversation are designed to prevent and remedy personal injury, and to protect the promise of monogamy that accompanies most marriage commitments. This sets these common law claims apart from the discriminatory sodomy law at issue in Lawrence v. Texas, 539 U.S. 558 (2003), which was not supported by any legitimate state interest and instead stemmed from moral disapproval and bigotry. Similarly, these laws (in most applications) seek to prevent personal and societal harms without regard to the content of the intimate expression that occurs in the extra-marital relationship. Thus, under United States v. O’Brien, 391 U.S. 367 (1968), these torts are constitutional despite the possibility that their use burdens forms of protected speech and expression.

I have not had a chance to look through the opinion, but will do so in a later post. For now, the media outlets covering the case have failed to link to the full opinion, so hopefully anyone else who wants to write about it will see this post and link to the opinion like I did.

This case is particularly notable because a North Carolina Superior Court judge struck down an alienation of affection lawsuit in 2014 arguing that there was no rational basis for the law and noting that the law chilled protected speech. My post breaking down that decision and examining North Carolina's law is here.

From a quick glance at the Court of Appeals opinion, it looks like there is some fairly in-depth discussion of the law's First Amendment implications, which I will be interested in reading in light of my prior criticism of the law. Additionally, the fact that this is a facial challenge to the law may not foreclose future challenges -- although having an appellate decision on record upholding the law may deter lower courts from upholding such challenges. I will discuss this in more depth in a future post.