Cohabitation and the Constitution

The ACLU has filed suit in North Carolina to overturn a state law criminalizing cohabitation:

If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor.

The ACLU contends that this law violates the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution.

Cohabitation is illegal in seven states: Florida, Michigan, Mississippi, North Carolina, North Dakota, Virginia and West Virginia. Notice that Tennessee is not on the list. Arizona and New Mexico decriminalized cohabitation in 2001.

Even though Tennessee does not have a cohabitation law, the ACLU lawsuit could have implications for matrimonial law in the state. Some courts routinely prohibit cohabitation in orders dealing with child custody. But if cohabitation enjoys some degree of constitutional protection, this practice could be subject to challenge. Although the best interests of the child would likely remain the most important consideration, courts might be required to make specific findings on a case-by-case basis.