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N.H. Supreme Court rules gay sex is not adultery

As Massachusetts waits to see if the Supreme Judicial Court will allow gays to marry, the highest court in New Hampshire ruled on Friday that sex between a married man or woman and a same-sex partner does not constitute adultery.

In a 3-to-2 decision that arose from a divorce case, the New Hampshire court narrowly defined adultery as sexual intercourse between a man and a woman. Adopting a broader standard, to include other intimate relations outside marriage, would be problematic, wrote the majority, because it could result in conflicting opinions among different judges about which intimate acts qualify.

"For over a hundred and fifty years judges, lawyers and clients have understood that adultery meant intercourse as we have defined it," the judges wrote. "It is an act determined not by the subjective test of an individual justice but by an objective determination based upon the facts."

Chief Justice David Brock and Justice John T. Broderick Jr., considered the most conservative judges on the court, disagreed, and argued in a dissenting opinion that adultery should be defined as "a spouse's extramarital intimate sexual activity with another, regardless of the specific intimate sexual acts performed . . . or the gender of the third party."

Other states, including South Carolina and New Jersey, have defined adultery more broadly to include same-sex relations.

Leading up to the high court decision in New Hampshire, a family court first ruled in favor of a Hanover, N.H., man who filed for divorce on the grounds of adultery, saying his wife had had an affair with another woman. The successful Supreme Court appeal was brought by the Vermont woman he had accused of having sex with his wife.

Among those hoping for an adultery finding was the Boston-based group Gay & Lesbian Advocates & Defenders, or GLAD, which filed a brief in the case requesting equal treatment for same-sex relationships. "Gay and lesbian relationships are as significant as non-gay ones and therefore pose the same threat to the marital union," the group's lawyers wrote.

"It's not a surprising decision, and in some ways it is heartening," GLAD attorney Jennifer Levi said yesterday. "Both the majority and the dissent opinions acknowledge the significance of gay and lesbian relationships."

Robin Mayer, the woman who brought the appeal, could not be reached yesterday, but said during arguments before the court last summer that the gay community is treated unfairly by state laws, and "does itself a disservice" by asking to be included in an expanded definition of adultery, according to the Concord (N.H.) Monitor.

Judges on both sides of the New Hampshire decision noted in their opinions that the case "is not about the status of homosexual relationships in our society or the formal recognition of homosexual unions," but about the narrow question of whether gay sex can be adultery.

Gay marriage opponent Ron Crews, president of the Newton-based Massachusetts Family Institute, agreed that the case has nothing to do with gay marriage -- but said he disagrees with the court's narrow view of adultery.

"From the husband's standpoint, that wife has betrayed their marriage fidelity, their marriage covenant," he said. "It happens to be with a person of another gender, but in the betrayal of fidelity, it is adultery."

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