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Originally Posted by [b
Quote[/b] ]Court: Lesbian
affair not adultery
By NANCY MEERSMAN
Union Leader Staff
CONCORD -- If a woman cheats on her husband in a lesbian affair, is it adultery? The state Supreme Court said yesterday it isn't.
In a 3-2 split, the court ruled that a Dartmouth College professor cannot use same-sex adultery as a ground for divorcing his wife.
Adultery, the court said, only takes place when the sexual liaison outside of marriage involves a man and a woman.
Justice Joseph P. Nadeau wrote for the majority that New Hampshire law defines adultery as "sexual intercourse" outside of a marriage.
Sexual intercourse, as defined in Webster's, requires a male organ and a female organ in a sexual connection, "which clearly can only take place between persons of the opposite gender," Nadeau wrote. He was joined in the decision by Justices Linda S. Dalianis and James E. Duggan.
The decision reversed a Lebanon Family Court's finding allowing David G. Blanchflower of Hanover to allege fault against his wife, Sian Blanchflower, for carrying on a "continuing adulterous affair" with a woman.
Mrs. Blanchflower and the woman named as a co-respondent in the divorce, Robin Mayer, appealed the divorce court's finding, claiming their homosexual relationship did not constitute adultery.
The case now goes back to the Lebanon court for further proceedings.
Chief Justice David A. Brock and John T. Broderick dissented, asserting the majority decision defines adultery too narrowly. They said the Legislature intended to enable injured spouses to allege fault in a divorce.
"Under our fault-based law, the innocent spouse is entitled to a divorce because the guilty spouse has breached a marital covenant, such as the covenant to be sexually faithful," the dissenters said.
The Gay and Lesbian Advocates and Defenders in Boston submitted a brief in the case as a "friend of the court," taking the position that cheating was cheating, regardless of the sexuality of the partners.
Nadeau stressed that the decision was not a gay rights issue. "This appeal is not about the status of homosexual relationships in our society or the formal recognition of homosexual unions," he said.
Jennifer Levi, an attorney for GLAD, said she was heartened that the justices acknowledged that "gay and lesbian relationships are significant and important" and that such a relationship could have harmed the marriage.
"In my eyes that was the greatest concern in this case -- that the court would not be understanding of gay and lesbian relationships," Levi said.
She said the significance of a homosexual relationship was not a factor in the decision -- it was decided strictly because "the adultery language was too narrow to include every significant or important extramarital relationship."
Lanea Witkus, attorney for Mrs. Blanchflower, said the court was simply following the law as it was narrowly written 200 years ago.
She said there is no common law covering divorce; the marital laws are based solely on statute and any changes have to be enacted by statute.
The ruling may have monetary consequences for David Blanchflower because he cannot use adultery to prove fault against his wife in the divorce.
"Yes, it has some consequences, but I'm not going to discuss any specifics in an ongoing case," Witkus said.
"It is a good decision . . . the court is following the law as it was written," Witkus said.
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