Malecek v. Williams

Alienation of affection requires proof that the spouses had a genuinely loving marriage, that the marital affection was destroyed, and that the defendant's wrongful acts caused that destruction. Criminal conversation requires proof of a valid marriage and sexual intercourse between the defendant and the plaintiff's spouse during the marriage. Although these are private civil actions, enforcing tort liability for conduct protected by the Constitution constitutes state action for Fourteenth Amendment purposes.

Lawrence v. Texas recognizes that consenting adults have a protected liberty interest in private intimate sexual conduct. But Lawrence also distinguishes regulations involving injury to a person or abuse of an institution the law protects. These torts fit within that distinction because they seek to remedy injury to the faithful spouse and protect marriage, an institution in which spouses commonly promise fidelity and monogamy.

The court did not treat the Lawrence liberty interest as fundamental or apply strict scrutiny. Instead, it understood Lawrence as applying a more searching form of rational-basis review that invalidates laws rooted in prejudice, bigotry, or bare moral disapproval but permits laws that genuinely further important state interests.

The torts apply without regard to membership in a disfavored group and are supported by substantial interests: deterring conduct that injures a spouse, enforcing the marital promise of fidelity, and preserving marriage and its social benefits. Less restrictive alternatives might exist, and the law imposes liability only on the third party rather than the unfaithful spouse, but those objections do not establish that the torts rest on impermissible moral disapproval. Accordingly, Williams failed to show that every application violates substantive due process.

The court accepted that intimate sexual conduct can carry expressive content. Later First Amendment decisions recognize that erotic conduct may fall within the outer scope of First Amendment protection, and Lawrence itself described sexuality as finding overt expression in intimate conduct. Thus, liability arising from an extramarital sexual relationship can implicate speech and expression interests.

But the torts ordinarily do not target the message, viewpoint, or content of the intimacy. Their purpose is to address the harm caused when a person's conduct destroys marital affection or breaches a marital commitment of fidelity. The same liability principles apply regardless of what the defendant said or did to create the relationship, so long as the required injury or sexual conduct is established.

Because the asserted state interests are unrelated to suppressing expression, the court applied the intermediate scrutiny framework of United States v. O'Brien. Protecting spouses from personal injury, safeguarding marital commitments, and reducing societal harms from broken marriages are substantial interests. Providing a tort remedy to the injured spouse also deters the harmful conduct while reaching only conduct that causes the relevant marital harm.

The torts are sufficiently tailored for facial review. In particular, an agreed-upon open marriage is a defense, as is a permanent-intent separation. Those limitations support the conclusion that the torts aim to remedy harm from violated marital commitments, rather than punish extramarital intimacy simply because the State disapproves of its content.

The First Amendment limits the State's ability to impose liability solely because of association. But these torts do not prohibit the many ordinary ways a person may associate with, befriend, form a meaningful relationship with, or share feelings with a married person.

Williams's claimed associational interest ultimately depended on the same intimate speech, expression, and sexual conduct considered in his other arguments. Because the torts' incidental burdens on those interests are justified by content-neutral interests in preventing marital injury and protecting marital commitments, the association theory did not make the torts facially unconstitutional.

Williams also invoked state constitutional protections for speech, expression, and privacy. The Court of Appeals explained that the North Carolina Supreme Court has interpreted those protections as coextensive with analogous federal constitutional rights, and the intermediate appellate court lacked authority to depart from that interpretation.

Thus, for the same reasons the claims survived the federal constitutional challenge, they also survived Williams's state constitutional challenge.