“Marriage is a great institution,” quipped Mae West, “but I’m not ready for an institution.” In modern America, this is a distinctly minority viewpoint. Few institutions are considered as fundamental or as desirable as marriage. In 1850, Alexis de Tocqueville observed that “There is certainly no country in the world where the tie of marriage is so much respected as in America, or where conjugal happiness is more highly or worthily appreciated”. A hundred and sixty-five years later, US Justice Anthony Kennedy cited the observation in Obergefell vs Hodges, the 2015 Supreme Court landmark case brought by Jim Obergefell against the Ohio Department of Health Director Richard Hodges, which decided that the constitutional right to marry may not be denied to same-sex couples. Such praise of wedlock is widespread, yet it may not be fully deserved. There are numerous problems with marriage in contemporary America. Infidelity and divorce are common, and many marital relationships are plagued by seemingly intractable sexual, racial and financial inequalities. Consequently, the question facing Americans at the beginning of the twenty-first century is whether this is an institution worth preserving, or at the very least, one they should stop glorifying.

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And yet the romantic conception of marriage continues to peddle the idea that intimate relationships are the most private and personal of decisions made between two people. It follows that government regulations should neither punish nor prohibit these choices. This view is central to Deborah Rhode’s argument in Adultery: Infidelity and the law, in which she demonstrates that while the majority of Americans consider extramarital affairs morally wrong, most also believe that they should not be criminalized. Rhode takes this one step further, to argue that adultery should not result in any adverse legal consequences, even in divorce proceedings or other civil actions. Adultery is as old as marriage, yet how the law treats infidelity has changed dramatically over time. There have been periods – in ancient Babylonia, for example, and Interregnum England – when extramarital affairs were punishable by death, and times when they were treated as mere foibles (particularly when committed by the husband). In America, there is a long history of considering adultery a crime, but actual prosecutions have been in decline since the American Revolution. Today, fewer than half of US states retain laws criminalizing adultery, and the enforcement of these laws is exceedingly rare. Still, the remaining adultery laws have proven surprisingly durable. Only a few years ago, a forty-one-year-old woman in New York was charged with adultery after she was caught having sex on a picnic table in a public park. Despite a variety of constitutional challenges, federal courts have repeatedly upheld adultery statutes, finding that they are justified by a state’s interest in protecting marriage as a means of safeguarding morality, traditional values and the nuclear family.