2020-0211, In the Matter of Molly Blaisdell and Robert Blaisdell

proceedings. Accordingly, we reverse the decision of the circuit court and remand for further other than that person ’ s spouse, regardless of either person’s sex or gender. 458:7, II, to include sexual intercourse between a marri ed person and someone overrule Blanchflower and reinterpret the term “adultery,” as it is used in RSA II (2018) to sexual intercourse between persons of the opposite sex. Today, we 226, 227 - 28 (2003), which limited the definition of adultery under RSA 458:7, woman based upon In the Matter of Blanchflower & Blanchflower, 150 N.H. alleging sexual intercourse between the petitioner, Molly Blaisdell, and another motion to dismiss his cross - petition for divorce on fault grounds of adultery Blaisdell, challenges a decision of the Circuit C ourt (McIntyre, J.) grantin g a DONOVAN, J. In this interlocutory appeal, t he respondent, Robert

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

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

No. 2020 - 0211 9th Circuit Court - Manchester Family Division

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

regardless of gender.” RSA 457:1 - a ( p. 2 2018). Additionally, the legislature eligibility requirements of this chapter may marry any other eligible person union of [two] people” and declared that “[a]ny person who otherwise meets the legislature enacted a statute that rede fined marriage as “the legally recognized In 200 9, six years after Blanchflower was decided, the New Hampshire

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

II. Blanchflower and Subsequent Developments in the Law

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

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

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

enforcement was for that very reason doomed.” Id. (quotation omitted). novo, but whether the ruling has co me to be seen so clearly as error that its holding, the question is not whether we would decide the issue differently de Portsmouth, 17 p. 3 3 N.H. 325, 333 (2020). “Thus, when asked to reconsider a we do not lightly overrule a prior opinion. Seacoast Newspapers v. City of decisions, commands great respect in a society governed by the rule of law, and Stare decisis, the idea that today’s court should stand by yesterday’s

invitation to revisit our holding in Blanchflower. interpretation of RSA 458:7, II requires as much. We accept the respondent ’s decisis analysis weighs in favor of overruling Blanchflower, and that a proper spouse s in same - sex marriages. T he respondent further asserts that a stare prohibits an adultery claim under RSA 458:7, II with respect to unfaithful the overall legislative scheme governing marriage in New Hampshire because it court’s construction of RSA 458:7, II in Blanchflower is now discordant with that, given the statutory right of same - sex couples to marry, RSA 457:1 - a, the intercourse between persons of the opposite sex. The respondent contends extent that it limits the definition of adultery to extramarital, sexual On appeal, the respondent invites us to overrule Bla n c hflower to the

1 p. 3 35 S. Ct. 258 p. 4 4, 2607 - 08 (2015). same - sex couples violate the Federal C onstitution. See Obergefell v. Hodges, Supreme Court of the United States held that state laws denyin g marriage to 2015, after same - sex marriage was adopted by statute in New Hampshire, the unions from o ther jurisdictions as legal marriages, RSA 457:3, :45 (2018). In of law, RSA 457:46, II (2018), and recognizing same - sex marriages and civil adopted provisions converting existing civil unions in to marriages b y operation 4

may wish to review these statutes to address these anomalies. refused to cohabit with the other for 6 months together” (emphasis added)). The legislature sect or society which professes to beli eve the relation of husband and wife unlawful, and has VIII (2018) (providing a fault ground for divorce “[w]hen either party has joined any religious marriage may enter into a written interspousal contract . . . .” (emphasis added)); RSA p. 4 458:7, definition of marriage. See, e.g., RSA 460:2 - a (2018) (“A man and woman in contemplation of flow from them have been limited by statutes that are no longer consonant with the current Notwithstanding these developments, the full extent of the rights and protections intended to 2 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855 (1992)). those who have re lied reasonably on the rule’s continued application.’” (emphasis added)) (quoting (“Under the second . . . factor, we inquire into ‘the cost of a rule’s repudiation as it would fall on of the stare decisis analysis seeks to protect. See State v. Duran, 158 N.H. 146, 157 (2008) precedent to protect marital infidelity is not the type of r easonable reliance that the second factor reliance on Blanchflower to insulate them from a fault - based divorce action, reliance on judicial Even if a person were to have engaged in an extramarital affair with a person of the same sex in 1

protections, and grounds for divorce that are associated with the legal status of intending that same - sex couples be endowed with all of the responsibilities, the rights of same - sex couples to enter into legally valid marriage s without also defies logic to suggest that our legislature and the S upreme Court recognize d determined t hat “[t]he Constitution grants them that right.” Id. at 2608. It eyes of the law” by way of legally recognized marri ages, the Supreme Court 2607 - 08. After many years of same - sex couples seeking “equal dignity in the maintaining laws prohibiting same - sex marriage. Obergefell, 135 S. Ct. at 2 the Federal Constitution forbids any jurisdiction in the United States from 2009, see RSA p. 4 457:1 - a, and, as the Supreme Court determined in Obergefell, already explained, New Hampshire adopted same - sex marriage by statute in jurisdictions in a manner that is discordant with th e prior rule. Id. As we have render past decisions obsolete or upon the formulation of laws across multiple development could arise upon the promulgation of new laws or rules that undercut the prior ru le. State v. Balch, 167 N.H. 329, 335 (2015). Such This factor concerns whether the law has developed in such a manner as to that the old rule is no more than a remnant of an abandoned doctrine. Id. Third, we consider whether related principles of law have developed such

deciding with whom to be intimate, not judicial dec isions. individuals rely on their sexual preferences and romantic sensibilities when Blanchflower ’s interpretation of RSA p. 4 4 p. 5 58:7, II. As the respondent observes, 1 We agree with the respondent that no such reliance interests are implicated by where advance planning of great precision is most obviously a necessity. Id. most often implicated when a rule is operative in the commercial law context hardship to the consequence of overruling it. See id. Reliance interests are adultery statute is subject to a kind of reliance that would lend a special Second, we consider whether Blanchflower ’s interpretation of the 5

statute considered as a whole. Petition of Carrier, 16 p. 5 5 N.H. 719, 721 (2013). final arbiter of the intent of the legislature as expressed in the words of the is likely to arise on rem and. In matters of statutory interpretation, we are the rei nterpret the term “adultery,” as it is used in RSA 458:7, II, because the issue Having overruled Blanchflower, we next take the opportunity to

to sexual intercourse between pers ons of the opposite sex. that it limits the definition of “adultery,” as that term is used in RSA 4 p. 5 58:7, II, implicated in this case. Accordingly, we overrule Blanchflower to the extent over ruling, and the second factor — dealing with reliance interests — is not conclusion of our stare decisis analysis, three factors weigh in favor of in Blanchflower has changed in the eyes of the law and society. Thus, at the In sum, the view of the institution of marriage underpinning our holding

state of the law. justification, rendering any application of the rule inconsistent with the current The se developments have left the rule derived from Blanchflower without across the United States. See RS A 4 p. 5 57:1 - a; Obergefell, 135 S. Ct. at 2607 - 08. recognition of same - sex marriage in New Hampshire, and shortly thereafter, continued in the years that followed Blanchflower, including the legal Blanchflower, 150 N.H. at 23 0 (Brock, C. J., dissenting). Significant change dictionary] . . . is to avert one’s eyes from the sexual realities of our world.” adhere to the primary definition of adultery in the 1961 edition of [the Constitution”). Indeed, the dissent in Blanchflower argued that to “strictly person would marry a person of the same sex viola tes the Massachusetts protections, benefits, and obligations of civil marriage solely because that N.E. 2d 941, 969 (Mass. 2003) (holding that “barring an individual from the enjoy intimate assoc iation); G oodridge v. Department of Public Health, 798 Clause of the Federal Constitution protects the right of same - sex couples to Lawrence v. Texas, 539 U.S. 558, 578 (2003) (holding that the Due Process intimate association and marriage had already begun to transform. See public opinion surrounding the rights of same - sex couples to engage in Obergefell, 135 S. Ct. at 2595. When Blanchflower was decided, the law and and “[t] he history of marriage is one of both continuity and change.” marriage “has not stood i n isolation from developments in law and society,” justification. Seacoast Newspapers, 173 N.H. at 334. The institution of differently, as to have robbed the old rule of significant application or Fourth, we ask whether facts have so changed, or come to be seen so

right to enter into legally valid marriages. clearly a remnant of the abandoned doctrine denying same - sex couples the protection of the marital promise of fidelity from same - sex marriages, and is s exual intercourse between persons of the opposite sex removes the legal marriage. Blanchflower ’s rule limiting the statutory definition of adultery to p. 6 6

lead to an absurd and unjust result. Although the dictionary retains the the marital promise of fidelity in all legally recognized marriages and would interpretation would not effectua te the statute’s overall purpose of protecting only if it is committed between people of the opposite sex. S uch an 458:7, II incongruously provid ing that infidelity may be a ground for divorce permitting two people to marry regardless of either person’s sex and in RSA enactment of same - sex marriage over a decade ago, resulting in RSA 457:1 - a persons of the opposite sex would be inconsistent with the legislature ’ s Limiting the definition of adultery to sexual intercourse between two

Wolfeboro, 1 p. 6 64 N.H. 18, 22 (2012). We agree wit h the respondent. relating to the same subject matter.” Prof. Fire Fighters of Wolfeboro v. Town of legislature enacts a provision, it has in mind previously enacted statutes statutory interpreta tion because “[w]e generally assume that when the statutes in contradiction with each other in contravention of our rules of To do the opposite, the respondent contends, would be to interpret those two 457:1 - a, both of which are part of the legislative scheme governing marriage. between persons of the same sex would harmonize RSA 458:7, II and RSA also argues that defining the term “adultery” to include sexual intercourse scheme,” Estate of Gordon - Couture v. Brown, 152 N.H. 265, 272 (2005). He isolation; instead, we attempt to do so in h armony with the overall statutory The respondent observes that this court does “not construe statutes in

2082. between individuals other than penetration of the vagina by the penis.” Id. at of the vagi na by the penis: COITUS” or “intercourse involving genital contact intercourse” is defined as either “heterosexual intercourse involving penetration Third New International Dictionary 30 (unabridged ed. 2002). “S exual between a married woman and someone other than her husband.” Webster’s intercourse between a married man and someone other than his wife or . . II. Adultery of either party.” “Adultery” is defined as “voluntary sexual shall be decreed in favor of the innocent party fo r any of the following causes: . RSA 458:7 provides, in part: “A divorce from the bonds of matrimony

scheme. Id. in light of the policy or purpose sought to be advanced by the statutory us to better discern the legislature’s intent and to interpret statutory language statute as a whole. Id. This considera tion of the statute, as a whole, enables consider words and phrases in isolation, but rather within the context of the overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not to include. Id. We c onstrue all parts of a statute together to effectuate its legislature might have said or add language that the legislature did not see fit legislative intent from the statute as written and will not consider what the language according to its plain and ordinary meaning. Id. We interpret We first look to the language of the statute itself, and, if possible, construe tha t p. 7 7

law in volves policy considerations best suited for the legislature. (Supp. 2020). Whether these definitions should apply t o adultery claims in the context of marital defined “sexual contact” and “sexual penetration” in the Crimin a l Code. See RS A 632 - A:1, IV; V We observe that, in a very different c ontext, the legislature has more broadly and precisely 3

doing so.” Id. may apply a decision prospectively when “justice would be better served by decisis, parties have relied upon a prior rule of law.” Id. at p. 7 7 30. Therefore, we at times can cause harsh results, when, consistent with the doctrine of stare “We have recognized, however, that retroactive application of judicial decisions Enterprises, Inc. v. Town of Northumberland, 149 N.H. 728, 729 - 30 (2003). law is, the court merely stated what the law always was.” Lee James appellate decisions were presumptively retroactive because, by stating what the that any ch ange in the law does not apply retroactively.” “At common law, appeal, the petitioner requested that this case be remanded with “instructions ruling to this case on remand. In her motion for summary disposition of this Finally, the respondent requests that we clarify the applicability of our

vagina by the penis. 3 penis, and intercourse involving genital contact other than penetration of the include heterosexual intercourse involving penetration of the vagina by the of either person. For purposes of this definition, “sexual intercourse” shall and someone other than that person’s spouse, regardless of the sex or gender “adultery” is defined as voluntary sexual intercourse between a married person 485 U.S. 568, 5 p. 7 75 (1988)). Accordingly, for purposes of RSA 458:7, II, the term brackets omitted) (quoting DeBartolo Corp. v. Fla. Gulf Coast Trade Council, intent. ’” Polonsky v. Town of Bedford, 171 N.H. 89, 96 (2018) (emphasis and avoid such problems unless such construction is plainly contrary to [legislative] raise serious constitutional problems, the Court will construe the statute to Obergefell, and “‘ where an otherwise acceptable construction of a statute would sex is constitutionally suspect in light of the Supreme Court’s holding in may be a ground for divorce only in marriages between persons of the opposite Moreover, interpreting RSA 458:7, II to provide that spousal infidelity

Ct. at 260 p. 7 7 - 0 p. 8 8. suited to today’s marital leg al landscape. See RSA 457:1 - a; Obergefell, 135 S. than penetra tion of the vagina by the penis”). This broader definition is better intercourse as “intercourse involving genital contact between individuals other Third New International Dictionary 2082 (unabridged ed. 2002) (defining sexual sex or gender of the persons engaged in the described conduct. See Webster’s Blanchflower, it now includes a definition that is applicable regardless of the definition of “sexual intercourse” that we used to reac h our decision in 8

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

p rospectively. Accordingly, our decision today shall apply retroactively. See id. conclude that justice would not be better served by applying our decision only and concluded that it is not. Consistent with that determination, we further reliance that would lend a special hardship to the consequence of overruling it, Blanchflower ’s interpretation of the adultery statute is subject to a kind of In this case, as explained above, we have considered whether