Petraeus scandal conjures
recent LGBT legal skirmishes
analysis by Lisa Keen
Most people probably did not imagine that the resignation of retired General David Petraeus from the CIA over a sexual relationship with a woman other than his wife could have implications for same-sex marriage.
Columbia Law School Professor Katherine Franke, writing in the school's Gender and Sexuality Law Blog November 10, saw right away the parallel between Petraeus's resignation and the experience of many gay and lesbian civil servants in the past.
"Gay men and lesbians were vulnerable to this kind of take down from public service until recently on the theory that illegal and shameful behavior such as being gay or having an extramarital affair could render you susceptible to blackmail, thus jeopardizing national security," wrote Franke.
A week later, John Prados, a senior fellow at the National Security Archive, pointed it out in a Washington Post piece. Until 1998, when President Bill Clinton issued an executive order to stop the practice, he said, CIA intelligence officers "found to be gay" automatically "lost their clearances or even their jobs."
"The ostensible concern about the Petraeus affair was the potential for blackmail," wrote Prados. "Yet it is far-fetched today to think that a foreign government would contrive an operation to ensnare a CIA employee through an affair, a foreign-spy spouse or an allegation of homosexuality. Our enemies are unlikely to bother with such complicated schemes. Instead, they buy information – the method that has remained tried and true – or attempt to hack it from the data-rich computer networks that the government is spending billions to defend."
It was a computer issue that fingered Petraeus. An investigation by the Federal Bureau of Investigation, aimed at determining whether the former CIA director's computer security had been breached, uncovered emails indicating he was having an extramarital affair. The FBI had also found classified documents on the computer of Petraeus's mistress, biographer Paula Broadwell.
Petraeus submitted his resignation to the president November 8. In a separate letter to his colleagues, Petraeus cited "personal reasons," but was candid.
"After being married for over 37 years, I showed extremely poor judgment by engaging in an extramarital affair," said the letter. "Such behavior is unacceptable, both as a husband and as the leader of an organization such as ours. This afternoon, the president graciously accepted my resignation."
During a press conference November 14, President Barack Obama said that he has seen "no evidence at this point" indicating the Petraeus affair compromised classified information or threatened national security. An investigation is ongoing and has cast suspicion of adultery on the current commander of U.S. forces in Afghanistan, General John Allen. It may imperil Allen's appointment to become NATO's Supreme Allied Commander.
New look at adultery
The high-profile scandalous nature of the news surrounding two of the country's best known and most popular military figures has prompted many essays and talk show discussions about adultery and its significance in national security matters and the military specifically, and in society generally.
Less than a week after Petraeus resigned, the New York Time s and its sister paper the Boston Globe ran a story about laws against adultery. Times ' national legal affairs correspondent Ethan Bronner pointed out that, in Virginia, where Petraeus lives, and in 22 other states, adultery is "a criminal act." Those states include New York, Illinois, Florida, Georgia, Arizona, Massachusetts, and Michigan, but not California, Ohio, or Texas.
In most of the 23 states where adultery is still a crime, it's a misdemeanor, reported Bronner. But in Massachusetts, Michigan, Wisconsin, Idaho, and Oklahoma, it's a felony. And it's rarely enforced or punished.
The discussions were reminiscent of talk about laws concerning same-sex sexual relations many years ago – half the states had laws against it on the books, most were misdemeanors, but a few were felonies. They were rarely enforced or punished. A key difference, however, is that laws banning consensual same-sex sexual relations (so-called sodomy laws) were frequently cited to prevent gays from various jobs, including the military. It may interest LGBT readers to know that Petraeus, during the repeal of "Don't Ask, Don't Tell," said he had no issues working with military colleagues he knew to be gay.
As Bronner noted, "Most states have purged their codes of laws regulating cohabitation, homosexual sodomy, and fornication – sex between unmarried adults – especially after the 2003 Supreme Court decision in Lawrence v. Texas. ..."
That decision, he noted, struck down laws prohibiting consensual sexual activity in private between unmarried adults.
"But the question of how that ruling affects adultery," he wrote, "remains unanswered because others may be harmed by adultery – a spouse and children."
One expert Bronner consulted, a law professor at UC Berkeley, said she thinks "it is an open question whether adultery continues to be as viable as criminal law even though it remains on the books" because "most courts in light of Lawrence are going to give adultery a wide berth."
One could almost hear U.S. Supreme Court Justice Antonin Scalia calling out, "I told you so."
In his scathing dissent against the Lawrence decision, Scalia warned, "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices." Bowers v. Hardwick was the 1986 Supreme Court decision that upheld laws against same-sex partners having sex.
"Every single one of these laws is called into question" by the majority ruling in Lawrence, said Scalia.
Harvard law professor Laurence Tribe argued against sodomy laws in the Hardwick case and wrote a pivotal brief in support of overturning Lawrence . He agrees that "Most courts after Lawrence would, indeed, give adultery a wide berth, but when it amounts to cheating on one's spouse and endangering others, rather than just violating an antiquated moral code, it raises issues that Lawrence v. Texas didn't address or even contemplate, so I wouldn't be too quick to assume that the law has evolved to the point where infidelity – especially by someone against whom it might be used as a source of blackmail – is no longer a source of constitutionally legitimate public concern."
"Certainly the far-fetched, but entirely predictable, argument that Lawrence put the country on a slippery slope that might endanger legitimate interests unrelated to purely moralistic intrusion into the consensual choices of responsible adults can draw no support from whatever berth adultery might have gained from the court's Lawrence decision," Tribe added.
LGBT law expert Nancy Polikoff at American University's Washington College of Law, pointed to a paragraph in the majority decision of Lawrence that made clear it was directed at "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle."
But, added Polikoff, the decision "does protect private, adult, consensual sex ... so it's arguable that adultery is protected."
William Eskridge Jr., a professor at Yale Law School and author of Dishonorable Passions: Sodomy Laws in America, 1861-2003, said he doesn't think state laws that criminalize adultery would be much weakened by Lawrence when it comes to "state penalties that are designed to protect the innocent spouse."
And Gary Buseck, legal director for Gay and Lesbian Advocates and Defenders, said he doesn't think Lawrence weakened laws against adultery much either.
Pre-Lawrence, the Massachusetts Supreme Judicial Court upheld our state adultery law against a constitutional challenge. I wouldn't bet on Lawrence changing that result although I am sure arguments could be made that it should."
"Most courts," said Buseck, "have read Lawrence really quite narrowly and disappointingly even to questions where it seems wholly relevant."
Interestingly, this glance at laws against adultery comes at a time Scalia and other Supreme Court justices are discussing privately among themselves whether to take up one or more cases related to the legal right of same-sex couples to be married and enjoy the benefits of marriage. Presumably, Scalia will re-read his Lawrence dissent that, "If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution?'" Laws against same-sex marriage, he said, with Justice Clarence Thomas signed on, were sustainable "only in light of Bowers ' validation of laws based on moral choices."
"What a moment this is," noted Franke in her comment regarding the Petraeus affair, "that on the heels of having won enormous victories in electing openly gay candidates such as Tammy Baldwin and securing marriage rights for same-sex couples in [three] more states, marriage remains an institution whose mores, morals, and social standing can bring down someone as powerful as David Petraeus when he violates them. It seems that we live in a time when it's safer to be gay than to be an adulterer."