by Matt Barr

Successful penumbra enlargement in North Carolina

Remember the perfect opportunity to get the ACLU in the paper -- err, woman who quit her job under pressure from her County Sheriff boss because she lived with her boyfriend and that was illegal in North Carolina? A state court struck down the law as unconstitutional.

"[T]he idea that the government would criminalize people's choice to live together out of wedlock in this day and age defies logic and common sense," said Jennifer Rudinger, executive director of the state ACLU chapter. The government didn't criminalize people's choice to live together out of wedlock in this day and age, Ms. Rudinger, it criminalized it 201 years ago. If only we had some kind of mechanism, some procedure we could follow to get laws changed in this country that didn't involve judges erasing them.

The state hasn't decided whether to appeal. The state ought to appeal. It ought to argue to the North Carolina Supreme Court as follows:

May it please the court. Your honors, this law, making it a misdemeanor for unmarried persons to "lewdly and lasciviously associate, bed and cohabit together" -- who even talks that way today! -- is, as Messrs. Justice Potter Stewart or Clarence Thomas might say, uncommonly silly. But we've gone down a road in this country that it's going to be hard to find our way back from.

Our courts appropriately guard our rights when political minorities are so powerless, so insular, that recourse to the democratic process is unlikely to be anything but pointless. In cases like Brown v. Board of Education, our courts protected and elevated a mercilessly oppressed 1/10 of our population. Minority religions have as much recourse to our First Amendment in our tradition as any mainstream Christian denomination. Our courts have even, I would submit, appropriately and valiantly stood up for the rights of gay people. The court below relies on Lawrence v. Texas, the case striking down Texas' sodomy law. It does so unwisely.

What entrenched majority would rise up and block a legislative attempt to erase this neanderthal law off our books? Is this so unlikely as to be clearly impossible, as was surely the case in Kansas in the 1950s for black citizens? We're not talking about a recently enacted law clearly detrimental to some political minority. We're talking about a law passed 200 years ago, when every jurisdication in this country had a similar law, and no one thought twice about it. It's an anachronism now. So we should repeal it. We, the people. Not this honorable court.

Counsel for respondent notes that Virginia, West Virginia, Florida, Michigan, Mississippi and North Dakota all still have laws against cohabitation. Did the other states in this union never have similar laws on the books? Of course they did. They repealed them when they no longer reflected the reality of society. We skip the sometimes difficult, sometimes frustrating, always necessary business of actually legislating, right to diktat from an insulated elite, at our eternal peril.

Liberty by fiat is not liberty, your honors. Reverse the court below and let the people of North Carolina take care of this the way the very foundations of our way of free life were built to take care of it. Thank you.

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