LEBANON, N.H. – Is it adultery if you're gay?
The New Hampshire Supreme Court will soon review a Lebanon Family Court case that raises the question of whether an extramarital affair between people of the same gender qualifies as adultery under the state's divorce laws.
Robin Mayer, a gay woman from Brownsville, Vt., has asked the high court to rule that only sexual intercourse between heterosexuals can constitute adultery -- and not sexual relations between people of the same gender.
That may seem an unusual position for an openly gay person to take, but Mayer says that the laws of New Hampshire are biased against homosexuals.
Mayer was named as the third party in the divorce proceedings of David and Sian Blanchflower of Hanover after David Blanchflower accused his wife of having an "adulterous" relationship with Mayer.
Mayer is trying to use what she sees as a defect in the law to her advantage: She seeks to extricate herself from a bitter divorce case on the grounds that New Hampshire's antiquated divorce statute doesn't allow a wife to be accused of committing adultery with another woman.
Adultery is one of a handful of "faults" for which a New Hampshire court can grant a divorce, in addition to the no-fault ground of irreconcilable differences. Any finding that one spouse was at fault in the break-up of the marriage can disadvantage that spouse in the division of the marital assets.
Mayer appealed to the Supreme Court after Lebanon Family Court Justice John Peter Cyr ruled that the legal definition of adultery should encompass same-gender sexual relations.
"The Lebanon Family Court is attempting to overturn several centuries of the accepted definition of adultery, which is heterosexual sexual intercourse," wrote Mayer, who is representing herself in the appeal.
Just what constitutes adultery is not defined in the divorce statute, however. Cyr keyed his ruling to a clause in the divorce statute that requires marital fidelity.
"This court sees little or no difference as to whether a breach of the obligation of fidelity occurs when a married person has ÛaÝ sexual relationship with a member of the opposite sex or same sex as the duty of fidelity has been breached in either instance," he wrote.
Other states have redefined adultery to include homosexual sex, such as Georgia and Florida. A New Jersey court said that adultery occurs when a spouse engages in a "personal, intimate sexual relationship with any other person, irrespective of the specific sexual acts performed, the marital status, or the gender of the third party."