In his most recent post, Conroy responds to my assertion that law and morality are not co-extensive. He helps to clarify the relationship, makes some excellent points, and raises several fascinating issues. Here is my response:
First, it is true that adultery is not always immoral. The same can be said of killing, lying, and stealing. I would add, though, that the word "adultery" carries a negative connotation and a presumption that the exceptions mentioned by Conroy don't apply. In an open marriage, for instance, I doubt either spouse would describe their behavior as "adulterous," and independent observers may or may not agree. Consider the difference between the terms "murder" and "killing." "Murder" is an unjustified killing, by definition. According to the predominate moral code of our society, murder is immoral, but killing need not be: self-defense is not immoral. The term "adultery," like "murder," implies wrongfulness—in this case, deceit, infidelity, "cheating." People might choose a different term to describe extra-marital sex in the examples that Conroy raises. The more neutral term "extra-marital sex" is an example; perhaps "swinging" for an open marriage would be another. It's also important to note that some cultures regard the act or practice of adultery as more or less immoral than others, which supports Conroy's point.
As an aside, perhaps a better example of laws justified by many people solely on grounds of morality are the laws against sodomy and prostitution. (But there are, as I said, many examples.)
Second, regarding the law's view of adultery, let me clarify. In my original post, I said that adultery is an immoral act that in most states goes "entirely unpunished by the law." I didn't mean to suggest that adultery is legal. In many states, adultery is illegal, usually by statute. These statutes typically also define "adultery" as, for example, "voluntary sexual intercourse between a married person and a person other than such person's spouse." In some states, adultery is a felony; in others, a misdemeanor; in others, only grounds for divorce. But this is largely irrelevant, because these laws are rarely prosecuted and because most states have adopted no-fault divorce, which means that "grounds" for divorce are largely unnecessary. Although adultery may still be relevant to an equitable division of marital assets, divorce can be justified by a mere allegation that the marriage is "irretrievably broken." By contrast, the traditional approach was to grant a petition for divorce only if specific breaches were committed, such as adultery or mental cruelty. This approach has been largely replaced.
There are, however, reasons apart from considerations of morality to have laws against adultery. These reasons may even help to explain the immorality of adultery and the inclusion of sexual exclusivity as a traditional term of the marriage contract. A description and explanation of these reasons, however, will have to wait until another time, as will my response to Conroy's interesting analysis of the legality and morality of lying. Both of these subjects deserve their own posts.
