In re Blaisdell

174 N.H. 187

261 A.3d 306

In the MATTER OF Molly BLAISDELL and Robert Blaisdell

No. 2020-0211

Supreme Court of New Hampshire.

Submitted: January 14, 2021

Opinion Issued: April 1, 2021

Law Office of Joshua L. Gordon, of Concord, for the petitioner, filed no brief.

Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein on the brief), for the respondent.

DONOVAN, J.

In this interlocutory appeal, the respondent, Robert Blaisdell, challenges a decision of the Circuit Court (McIntyre, J.) granting a motion to dismiss his cross-petition for divorce on fault grounds of adultery alleging sexual intercourse between the petitioner, Molly Blaisdell, and another woman based upon In the Matter of Blanchflower & Blanchflower, 150 N.H. 226, 227-28, 834 A.2d 1010 (2003), which limited the definition of adultery under RSA 458:7, II (2018) to sexual intercourse between persons of the opposite sex. Today, we overrule Blanchflower and reinterpret the term "adultery," as it is used in RSA 458:7, II, to include sexual intercourse between a married person and someone other than that person's spouse, regardless of either person's sex or gender. Accordingly, we reverse the decision of the circuit court and remand for further proceedings.

I. Factual and Procedural History

The following pertinent facts are supported by the record or undisputed on appeal. In January 2019, the petitioner filed for divorce from the respondent on grounds of irreconcilable differences. In March 2019, the respondent filed an answer and a cross-petition for divorce on fault-based grounds of adultery, alleging an ongoing intimate relationship between the petitioner and another woman. In October 2019, the petitioner filed a motion to dismiss the fault-based claims of adultery, arguing that "New Hampshire [law] clearly states that adultery under RSA 458:7, II does not include homosexual relationships," see Blanchflower, 150 N.H. at 227-28, 834 A.2d 1010, and, therefore, the respondent's "allegation of fault grounds based on a supposed homosexual relationship is contrary [to] the law and must be dismissed." In November 2019, the circuit court granted the motion to dismiss the respondent's cross-claim in a one-sentence margin order stating: "Based on the holding in [ Blanchflower ]." This Rule 8 interlocutory appeal followed. See Sup. Ct. R. 8.

II. Blanchflower and Subsequent Developments in the Law

The narrow question before the court in Blanchflower was "whether a homosexual [intimate] relationship between a married person and another constitutes adultery within the meaning of RSA 458:7, II." Blanchflower, 150 N.H. at 227, 834 A.2d 1010. In answering that question, we defined "adultery" as "voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband." Id. (quoting Webster's Third New International Dictionary 30 (unabridged ed. 1961)). Further, we defined "sexual intercourse" as a "sexual connection esp. between humans: COITUS, COPULATION," and defined "coitus" as requiring "insertion of the penis in the vagina." Id. (quoting Webster's Third New International Dictionary 441, 2082 (unabridged ed. 1961)). We observed that case law addressing adultery "support[s] the inference that adultery meant intercourse." Id. at 228, 834 A.2d 1010. We also explained that adultery as a ground for divorce was historically equated with the crime of adultery, which was defined as "intercourse from which spurious issue may arise." Id. (quotation omitted). Based upon the foregoing, we concluded that "adultery under RSA 458:7, II does not include homosexual relationships." Id.

In 2009, six years after Blanchflower was decided, the New Hampshire legislature enacted a statute that redefined marriage as "the legally recognized union of [two] people" and declared that "[a]ny person who otherwise meets the eligibility requirements of this chapter may marry any other eligible person regardless of gender." RSA 457:1-a (2018). Additionally, the legislature adopted provisions converting existing civil unions into marriages by operation of law, RSA 457:46, II (2018), and recognizing same-sex marriages and civil unions from other jurisdictions as legal marriages, RSA 457:3, :45 (2018). In 2015, after same-sex marriage was adopted by statute in New Hampshire, the Supreme Court of the United States held that state laws denying marriage to same-sex couples violate the Federal Constitution. See Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 2607-08, 192 L.Ed.2d 609 (2015).

III. Stare Decisis Analysis

On appeal, the respondent invites us to overrule Blanchflower to the extent that it limits the definition of adultery to extramarital, sexual intercourse between persons of the opposite sex. The respondent contends that, given the statutory right of same-sex couples to marry, RSA 457:1-a, the court's construction of RSA 458:7, II in Blanchflower is now discordant with the overall legislative scheme governing marriage in New Hampshire because it prohibits an adultery claim under RSA 458:7, II with respect to unfaithful spouses in same-sex marriages. The respondent further asserts that a stare decisis analysis weighs in favor of overruling Blanchflower, and that a proper interpretation of RSA 458:7, II requires as much. We accept the respondent's invitation to revisit our holding in Blanchflower.

Stare decisis, the idea that today's court should stand by yesterday's decisions, commands great respect in a society governed by the rule of law, and we do not lightly overrule a prior opinion. Seacoast Newspapers v. City of Portsmouth, 173 N.H. 325, 333, 239 A.3d 946 (2020). "Thus, when asked to reconsider a holding, the question is not whether we would decide the issue differently de novo, but whether the ruling has come to be seen so clearly as error that its enforcement was for that very reason doomed." Id. (quotation omitted).

We will overrule a decision only after considering: (1) whether the rule has proven to be intolerable simply by defying practical workability; (2) whether the rule is subject to a kind of reliance that would lend a special hardship to the consequence of overruling; (3) whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. Id. Although these factors guide our judgment, no single factor is dispositive. Id.

First, with respect to the initial stare decisis factor, Blanchflower may have provided a workable rule, but it is no longer practical given that it defies any application to an entire class of legally married persons. Limiting adultery to heterosexual relationships also undermines the legislative intent underlying same-sex marriage laws. Accordingly, we conclude that the first factor weighs in favor of overruling Blanchflower.

Second, we consider whether Blanchflower’s interpretation of the adultery statute is subject to a kind of reliance that would lend a special hardship to the consequence of overruling it. See id. Reliance interests are most often implicated when a rule is operative in the commercial law context where advance planning of great precision is most obviously a necessity. Id. We agree with the respondent that no such reliance interests are implicated by Blanchflower’s interpretation of RSA 458:7, II.¹ As the respondent observes, individuals rely on their sexual preferences and romantic sensibilities when deciding with whom to be intimate, not judicial decisions.

Third, we consider whether related principles of law have developed such that the old rule is no more than a remnant of an abandoned doctrine. Id. This factor concerns whether the law has developed in such a manner as to undercut the prior rule. State v. Balch, 167 N.H. 329, 335, 111 A.3d 672 (2015). Such development could arise upon the promulgation of new laws or rules that render past decisions obsolete or upon the formulation of laws across multiple jurisdictions in a manner that is discordant with the prior rule. Id. As we have already explained, New Hampshire adopted same-sex marriage by statute in 2009, see RSA 457:1-a, and, as the Supreme Court determined in Obergefell, the Federal Constitution forbids any jurisdiction in the United States from maintaining laws prohibiting same-sex marriage.² Obergefell, 135 S. Ct. at 2607-08. After many years of same-sex couples seeking "equal dignity in the eyes of the law" by way of legally recognized marriages, the Supreme Court determined that "[t]he Constitution grants them that right." Id. at 2608. It defies logic to suggest that our legislature and the Supreme Court recognized the rights of same-sex couples to enter into legally valid marriages without also intending that same-sex couples be endowed with all of the responsibilities, protections, and grounds for divorce that are associated with the legal status of marriage. Blanchflower’s rule limiting the statutory definition of adultery to sexual intercourse between persons of the opposite sex removes the legal protection of the marital promise of fidelity from same-sex marriages, and is clearly a remnant of the abandoned doctrine denying same-sex couples the right to enter into legally valid marriages.

Fourth, we ask whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. Seacoast Newspapers, 173 N.H. at 334, 239 A.3d 946. The institution of marriage "has not stood in isolation from developments in law and society," and "[t]he history of marriage is one of both continuity and change." Obergefell, 135 S. Ct. at 2595. When Blanchflower was decided, the law and public opinion surrounding the rights of same-sex couples to engage in intimate association and marriage had already begun to transform. See Lawrence...