the misadventures of weather boy: Superior Court Judge strikes down NC cohabitation law

Friday, July 21, 2006

Superior Court Judge strikes down NC cohabitation law

Craven County Superior Court Judge Benjamin Alford ruled today that the North Carolina cohabitation statute (N.C. G.S. § 14-184) was unconstitutional. In Hobbs v. Smith, et al. (Pender County Superior Court 2006; Case Number 05-CVS-000267), Alford ruled that the law violated the liberty interest set forth in Lawrence v. Texas, 539 U.S. 558 (2003).

The case originated from when Hobbs was working as a dispatcher at the Pender County Sheriffs Department. Smith, the sheriff, told her that she could either marry her live-in boyfriend, move out, or leave her job. She chose the latter and then sued the department among others in 2005.

While the cohabitation statute is still on the books, it has been thought to be unenforceable for some time. It is rarely enforced criminally, but more often used for other coercive purposes.

It is unclear at this point whether the State will appeal the ruling to the North Carolina Court of Appeals. The statute is so rarely enforced that the Attorney General may just let it pass into oblivion. On the other hand, he may opt to enforce it. There are potential issues of standing (she was never charged; can she sue ex post facto of her job loss?) and whether the North Carolina Court of Appeals and/or the NC Supreme Court will buy the Lawrence reasoning.

There is as of yet no released opinion in the case, and Superior Court opinions are notoriously hard to get. A memorandum opinion will probably be issued in the next couple of weeks, and due to the high profile nature of the case, someone is bound to redistribute it.

There is very little official information online about the case. The Pender County Superior Court calendar is excerpted below in case is anyone is particularly interested:

05-CVS-000267  HOBBS,DEBORA,LYNN                        MILLER,JEFFREY,S                 
                                                        KENNEY,SHELAGH,REBECCA           
                                                        ISAJIW,PETER,J                   
               -VS-
               SMITH,CARSON                             THURMAN,CARL,W,III (TREY)        
               PENDER COUNTY SHERIFFS OFFICE            
               DAVID,BENJAMIN,R                         
               COOPER,ROY                               ADINOLFI,DAVID,J,II              
               COOPER,ROY FID                           
               ATTORNEY GENERAL OFFICE                  
               NC STATE OF                              

   ISSUES: DECLARATORY JUDGEMENT                         

           DAYS SINCE FILING:   448    

           Summary Judgment / Determine Sufficiency of Answers or Objections - 1 Hour
           (Adinolfi)
           
           All pending motions - 1/2 Day (Miller)

On a related note, a similar statute N.C. G.S. § 14-186 may be unconstitutional on similar grounds ("Any man and woman found occupying the same bedroom in any hotel...for any immoral purpose...shall be deemed guilty of a Class 2 misdemeanor."). Based on the construction of G.S. § 14-184, G.S. § 14-186 is likely fatal for the same reasons.

An interesting point is that it is possible that Lawrence may not be needed at all to take down this statute. The statute mentions that "...Provided, that the admissions or confessions of one shall not be received in evidence against the other." This implies that such a violation would be need to breach the privacy of the bedroom which is protected for individuals by Eisenstadt v. Baird, 405 U.S. 438 (1972) (see also Griswold v. Connecticut, 381 U.S. 479 (1965), for the progenitor protection for married couples). Granted since Lawrence is squarely based on top of Eisenstadt, Griwold, Row v. Wade (410 U.S. 113 (1973)), Lawrence is definitely sufficient to get the job done.

Sources (some are time sensitive):