Should the Law Punish Adultery? The Troubling Case of General Kevin Byrnes

Monday, Aug. 15, 2005

Last week, four-star Army General Kevin Byrnes, a 36-year veteran on the brink of retirement, was relieved of his command of Fort Monroe. According to press accounts, Byrnes lost his command as punishment for the offense of adultery. Yet Byrnes contends that the adultery occurred after he was formally separated from his wife, was committed with a civilian, and in no way affected his official duties.

Should the Army initiate prosecution, Byrnes could face still further discipline that could ultimately deprive him of thousands of dollars in retirement pay. The removal of command has already cost his reputation dearly.

Nor is Byrnes alone in facing military discipline for committing adultery. Numerous members of the armed services are disciplined annually for consensual relationships. With the nation at war and the armed forces missing recruitment goals, is there any possible justification for disciplining military personnel for private consensual conduct?

The answer is surely no. But explaining exactly why will require me to confront a related question: How can the law subject anyone to sanctions for adultery?

What the Uniform Code of Military Justice Says About Adultery

The Uniform Code of Military Justice does not specifically prohibit adultery, but it does contain a provision, Article 134, prohibiting "all disorders and neglects to the prejudice of good order and discipline in the armed forces [and] all conduct of a nature to bring discredit upon the armed forces . . . ."

If a state or the federal government were to impose criminal penalties on civilians for such a vaguely defined offense, the courts would have no difficulty striking it down as inconsistent with Due Process. It is a cardinal principle of American constitutional law that the criminal statute books must give every person fair notice of what conduct is and is not prohibited, and the language quoted above clearly fails to provide such notice.

Nonetheless, the Supreme Court upheld Article 134 against a vagueness challenge in the 1974 case of Parker v. Levy. Writing for a majority, then-Justice Rehnquist opined that the vagueness doctrine should be less demanding for military discipline than for criminal punishment of civilians, in part because the Uniform Code is not intended to be comprehensive in the way that a civilian criminal code is.

And it would surely be disingenuous for General Byrnes to claim that he was unaware that the armed forces prohibited adultery. Paragraph 62 of the Manual for Courts-Martial expressly defines adultery as violating the "prejudice of good order" provision of the Uniform Code. (Note that I have provided a link to the 2000 edition on a Navy website, but the same Manual applies to the Army. Amendments adopted by executive order in 2002 did not change paragraph 62.)

Did General Byrnes Prejudice Good Order and Discipline?

Nonetheless, General Byrnes appears to have a good defense to charges under paragraph 62. That paragraph requires not only that a married member of the armed forces had sexual intercourse with someone other than his spouse, but also "[t]hat, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces."

It is easy to see how an officer who conducted an extramarital affair with one of his subordinates might thereby prejudice "good order and discipline." Quite apart from the adulterous nature of the conduct, such behavior, even if mutually consensual, could suggest to other subordinates that the leader is playing favorites, or that the way to get ahead in the unit is to sleep with the commander. For reasons such as these, many non-military organizations either prohibit or discourage such "vertical" romantic relationships among their personnel.

Yet this abuse-of-power rationale does not apply to Byrnes. The woman with whom he had an affair was not under his command. Indeed, she was not even in the military.

Did General Byrnes Demonstrate Lack of Trustworthiness or Dishonesty?

To be sure, even a consensual adulterous relationship with a civilian could prejudice "good order and discipline" or "bring discredit upon the armed forces" under some circumstances.

The military chain of command depends upon trust. Soldiers asked to risk their lives must be able to trust that their commanders have tried to minimize risks to their safety in choosing and designing missions. Trust depends on honesty, and it may be reasonable to infer that someone who would break his solemn wedding vows would also break the bonds of trust with the men and women under his command.

Still, the notion that adultery bespeaks a general lack of trustworthiness is open to question. Certainly, those who argued that President Clinton should not have been impeached for dishonesty relating to an extra-marital affair thought otherwise: Clinton's misdeeds, they argued, were of a private rather than a public nature. (Clinton, though Commander in Chief, was not subject to military law, but note that even if he had been, he would not have been guilty of adultery, because he "did not have sex," i.e., sexual intercourse, "with that woman.")

Whatever one thinks of the trust point, however, it is difficult to see that it applies to General Byrnes. At least by his account, the extra-marital relationship occurred when he was separated from his wife. During that period, his wife likely would not have expected fidelity to a marriage that was probably over in all but name. And thus it would be improper for anyone serving under or with General Byrnes to infer a general lack of honesty or trustworthiness from the technically extra-marital relationship in which he engaged.

Perhaps because the case against General Byrnes appears to be so weak, the Army has not brought formal adultery charges against him, and may never do so. Indeed, according to anonymous Army officials quoted in the New York Times, General Byrnes was not relieved of his command for adultery as such, but rather for disobeying an order to end his adulterous relationship pending the outcome of an Army investigation.

If true, that would put the Army action in a somewhat better light, but it is hard not to sympathize with General Byrnes: If there was nothing illicit about the relationship, why should he have been required to break it off or forfeit his command?

Adultery and the "Don't Ask, Don't Tell" Policy

More broadly, the Byrnes case raises two sorts of legal and policy questions. The first concerns the military: Especially in an era of manpower shortages, should the armed forces really be disciplining officers and enlisted personnel for consensual sexual conduct?

Even if one credits the rationales I have provided for treating certain consensual relationships as in some way prejudicial to good order and military discipline, the adultery provision of the Manual for Courts-Martial is at best a blunt instrument for furthering those rationales.

A sexual relationship with a subordinate could indeed constitute an abuse of power, but the abuse has nothing to do with the marital status of the people conducting it. Indeed, if anything, such relationships are likely to be more harmful when they occur between single people, because a single commander is more likely to conduct the relationship openly, than is a married commander, and thus a single commander is also more likely to send the harmful signals to other subordinates.

As for the honesty and trustworthiness issues, it is true that adultery often bespeaks a character flaw, but so do a host of other forms of private conduct--such as lying to boyfriends and relatives, or failing to call mom on Mother's Day--that the military does not proscribe.

At bottom, the adultery prohibition, as currently written, seems more concerned with enforcing "morals" than with promoting military discipline as such. In this respect, it is of a piece with the senseless "don't ask, don't tell" policy that excludes from military service thousands of patriotic Americans because of their private consensual sexual conduct or orientation.

Adultery Prosecutions in Civilian Life

To say that a particular provision of the Uniform Code of Military Justice or the Manual for Courts-Martial is senseless, however, is not to say that it cannot be validly enforced. Courts have a long tradition of deferring to the military itself, or to the political branches of government in evaluating military policies.

Thus, a judge might well agree with me that the adultery prohibition--or, to take another example from the Uniform Code, the prohibition of sodomy, whether performed with a person of the same or opposite sex--is profoundly unwise, but could nonetheless uphold the military rule under a principle of deference.

But what about parallel laws in civilian life? In the 2003 case of Lawrence v. Texas, the U.S. Supreme Court invalidated a Texas law prohibiting same-sex sodomy, in an opinion making clear that even a prohibition that applied equally to heterosexual and homosexual acts would be unconstitutional. The Lawrence opinion was underwritten by a principle holding that the government has no legitimate business interfering with the private consensual conduct of consenting adults. Might the same principle invalidate state laws prohibiting adultery?

Is Adultery Like Same-Sex Sodomy?

The line of cases culminating in Lawrence includes statements affirming the power of the state to prohibit adultery, so one might think the answer is a clear no.

Yet these statements cannot be taken at face value, for they originate with a dissent by Justice Harlan in the 1961 case of Poe v. Ullman, which also asserted state power to prohibit homosexual conduct. Given that the Court in Lawrence was willing to use the logic of Justice Harlan's Poe dissent without also embracing its assertion of state power to regulate homosexual acts, it might also be willing to extend the principle of freedom from state interference with sexual relationships of consenting adults to encompass adultery, notwithstanding the other Poe assertion.

However, there are important distinctions between, on the one hand, non-adulterous sex between consenting adults of the same or opposite sex, and, on the other hand, adulterous sex. Most obviously, non-adulterous sex between consenting adults typically harms no third parties, whereas adultery typically constitutes a breach of perhaps the most solemn promise a person can make.

Accordingly, one might conclude that the Lawrence precedent will not be extended to cover adultery.

The Harm Adultery Causes

Nonetheless, the argument for constitutional protection for adulterers is stronger than it appears. For one thing, the fact that adultery causes harm, does not automatically disqualify it from constitutional protection.

Justice Oliver Wendell Holmes, Jr., famously wrote a century ago that "liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same [is] a shibboleth" -- that is, a myth. The validity of laws forbidding drug use or mandating motorcycle helmets belies the suggestion that the government may not act paternalistically toward its citizens.

Yet the converse of Holmes's proposition holds as well. An act may be constitutionally protected even though it causes serious harm to others. Frequently, for example, the exercise of the right of free speech causes grave offense or hurt feelings, which are real and concrete harms. Likewise, criminals can use the freedom from unreasonable searches and seizures that we all enjoy to shelter evidence of their wrongdoing.

The Difference Between Civil and Criminal Penalties

Perhaps adultery ought to be understood simply as a very serious breach of contract. Adulterers cause real harm to their spouses, and just as the law legitimately makes those who breach their commercial contracts pay money damages for the harm they cause, there seems nothing wrong with, for example, "fault" divorce schemes that impose greater financial obligations on adulterers than on other ex-spouses.

But by the same token, just as we long ago abolished debtors' prison, so too it is long past time to recognize that the criminal law is an improper tool to be used against adulterers.

The issue is not hypothetical: According to a Washington Post essay by George Washington University law professor Jonathan Turley, as of last September, the criminal codes of 24 states still prohibited adultery, and zealous prosecutors still invoke these provisions from time to time.

Up until now, legislators have been understandably reluctant to propose decriminalization and risk appearing to be "pro-adultery." And unlike the gay rights movement, which could litigate under the banner of "gay pride," no one has been especially eager to bring a test case on behalf of adulterers.

But because of the special circumstances surrounding the acts committed by General Byrnes, he may be present the unusual case of a sympathetic adulterer. It would be ironic, though fitting, if public outcry over the injustice of his treatment led to broad legal reform through legislative action or the courts.

Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in early 2006.