              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-830

                              Filed: 5 September 2017

Forsyth County, No. 15 CVS 5646

MARC MALECEK, Plaintiff,

             v.

DEREK WILLIAMS, Defendant.


      Appeal by plaintiff from order entered 11 May 2016 by Judge L. Todd Burke in

Forsyth County Superior Court. Heard in the Court of Appeals 7 March 2017.


      The Law Offices of J. Scott Smith, PLLC, by J. Scott Smith and Andrew
      Newman, for plaintiff-appellant.

      Allman Spry Davis Leggett & Crumpler, P.A., by Kim R. Bonuomo, Joslin
      Davis, and Bennett D. Rainey, for defendant-appellee.


      DIETZ, Judge.


      This case concerns two common law causes of action—alienation of affection

and criminal conversation—that permit litigants to sue the lovers of their unfaithful

spouses. These laws were born out of misogyny and in modern times are often used

as tools for enterprising divorce lawyers seeking leverage over the other side.

      Defendant Derek Williams contends that these aging common law torts are

facially unconstitutional because they violate individuals’ First and Fourteenth

Amendment rights to engage in intimate sexual activity, speech, and expression with

other consenting adults.
                                MALECEK V. WILLIAMS

                                  Opinion of the Court



      As explained below, we reject this facial constitutional challenge. Claims for

alienation of affection and criminal conversation are designed to prevent and remedy

personal injury, and to protect the promise of monogamy that accompanies most

marriage commitments. This sets these common law claims apart from the

discriminatory sodomy law at issue in Lawrence v. Texas, 539 U.S. 558 (2003), which

was not supported by any legitimate state interest and instead stemmed from moral

disapproval and bigotry. Similarly, these laws (in most applications) seek to prevent

personal and societal harms without regard to the content of the intimate expression

that occurs in the extra-marital relationship. Thus, under United States v. O’Brien,

391 U.S. 367 (1968), these torts are constitutional despite the possibility that their

use burdens forms of protected speech and expression.

      Our holding is neither an endorsement nor a critique of these “heart balm”

torts. Whether this Court believes these torts are good or bad policy is irrelevant; we

cannot hold a law facially unconstitutional because it is bad policy. We instead ask

whether there are any applications of these laws that survive scrutiny under the

appropriate constitutional standards. As explained below, although there are

situations in which these torts likely are unconstitutional as applied, there are also

many applications that survive constitutional scrutiny. Thus, the common law torts

of alienation of affection and criminal conversation are not facially unconstitutional.

We reverse the trial court’s order and remand for further proceedings.



                                         -2-
                               MALECEK V. WILLIAMS

                                  Opinion of the Court



                          Facts and Procedural History

      Mark and Amber Malecek were a married couple. Ms. Malecek is a nurse.

Defendant Derek Williams is a medical doctor at the hospital where Ms. Malecek

works. In early 2015, Dr. Williams and Ms. Malecek began a sexual relationship.

      Mr. Malecek discovered the affair and sued Dr. Williams for alienation of

affection and criminal conversation. Dr. Williams moved to dismiss Mr. Malecek’s

claims under Rule 12(b)(6) of the Rules of Civil Procedure on the ground that North

Carolina’s common law causes of action for alienation of affection and criminal

conversation are facially unconstitutional.

      The trial court held a hearing on Dr. Williams’s motion, accepted his

constitutional arguments, and entered a written order granting his motion to dismiss.

Mr. Malecek timely appealed.

                                      Analysis

      This Court reviews the grant of a Rule 12(b)(6) motion to dismiss de novo. State

v. Berger, 368 N.C. 633, 639, 781 S.E.2d 248, 252 (2016). A Rule 12(b)(6) motion “is

properly granted where a valid legal defense stands as an insurmountable bar to a

plaintiff’s recovery.” Lupton v. Blue Cross & Blue Shield of N.C., 139 N.C. App. 421,

424, 533 S.E.2d 270, 272 (2000). Because the courts cannot permit a plaintiff to

pursue a cause of action that is unconstitutional on its face, Dr. Williams’s facial




                                         -3-
                                MALECEK V. WILLIAMS

                                  Opinion of the Court



challenge to these common law torts is an appropriate subject for a Rule 12(b)(6)

motion.

      We begin by examining the elements of these common law claims. “A claim for

alienation of affections is comprised of wrongful acts which deprive a married person

of the affections of his or her spouse—love, society, companionship and comfort of the

other spouse.” Darnell v. Rupplin, 91 N.C. App. 349, 350, 371 S.E.2d 743, 744 (1988).

To prevail on an alienation of affection claim, the plaintiff must prove (1) that the

spouses were happily married and a genuine love and affection existed between them;

(2) the love and affection was alienated and destroyed; and (3) the defendant caused

the destruction of that marital love and affection. Id. at 350, 371 S.E.2d at 745.

      Similarly, a claim for criminal conversation lies against a defendant who

engages in sexual relations with a married person. “The elements of the tort are the

actual marriage between the spouses and sexual intercourse between defendant and

the plaintiff’s spouse during the coverture.” Johnson v. Pearce, 148 N.C. App. 199,

200–01, 557 S.E.2d 189, 190 (2001).

      In the trial court, Dr. Williams argued that both of these causes of action were

facially unconstitutional under the First and Fourteenth Amendments. The trial

court agreed and granted Dr. Williams’s Rule 12(b)(6) motion without identifying the

particular constitutional doctrine on which it relied. Because we review the grant of




                                         -4-
                                 MALECEK V. WILLIAMS

                                   Opinion of the Court



a Rule 12(b)(6) motion to dismiss de novo, we must address all grounds on which Dr.

Williams challenged these two common law claims.

   I.       Substantive Due Process

        Dr. Williams first argues that alienation of affection and criminal conversation

offend the Due Process Clause of the Fourteenth Amendment by restraining one’s

liberty to have intimate sexual relations with another consenting adult. In support of

this argument, Dr. Williams relies on the U.S. Supreme Court’s decision in Lawrence

v. Texas.

        In Lawrence, the Supreme Court invalidated a Texas law criminalizing

intimate sexual conduct between two people of the same sex. 539 U.S. 558, 578 (2003).

The Texas statute was rooted in bigotry; it criminalized homosexual sex solely

because some found it immoral or distasteful. As the Court observed, the Constitution

does not permit a state to degrade the basic liberties of a group of its citizens on moral

grounds. Gays, lesbians, and all other people who engage in homosexual sex “are

entitled to respect for their private lives. The State cannot demean their existence or

control their destiny by making their private sexual conduct a crime.” Id. The Court

thus invalidated the Texas law because it furthered “no legitimate state interest

which can justify its intrusion into the personal and private life of the individual.” Id.

        We agree with Dr. Williams that Lawrence established (or reaffirmed) that

adult individuals have a constitutionally protected interest in engaging in intimate



                                          -5-
                                MALECEK V. WILLIAMS

                                   Opinion of the Court



sexual activities free of governmental intrusion or regulation. Id. at 567. Whatever

the bounds of this protected right, it certainly extends to private sexual activities

between two consenting adults. Moreover, a civil lawsuit between private parties

constitutes “state action” for purposes of the Fourteenth Amendment when

enforcement of that cause of action imposes liability for engaging in a constitutionally

protected right. New York Times Co. v. Sullivan, 376 U.S. 254, 265 (1964). Thus, Dr.

Williams correctly contends that a suit against him for alienation of affection and

criminal conversation, based on his intimate sexual relationship with Ms. Malecek,

implicates his Fourteenth Amendment rights.

      But the Supreme Court also added an important caveat in Lawrence. It

observed that the Fourteenth Amendment generally prohibits States from regulating

private, consensual sexual activity “absent injury to a person or abuse of an

institution the law protects.” Lawrence, 539 U.S. at 567. It is well-settled that

alienation of affection and criminal conversation seek to remedy an injury to a person.

Misenheimer v. Burris, 360 N.C. 620, 624, 637 S.E.2d 173, 176 (2006). Moreover,

although the Supreme Court in Lawrence did not explain what it meant by an

“institution the law protects,” the institution of marriage seems an obvious choice.

Marriage is, after all, perhaps the most important institution in human history. “The

centrality of marriage to the human condition makes it unsurprising that the

institution has existed for millennia and across civilizations.” Obergefell v. Hodges,



                                          -6-
                                  MALECEK V. WILLIAMS

                                    Opinion of the Court



__ U.S. __, __, 135 S. Ct. 2584, 2594 (2015). “Its dynamic allows two people to find a

life that could not be found alone, for a marriage becomes greater than just the two

persons. Rising from the most basic human needs, marriage is essential to our most

profound hopes and aspirations.” Id.

       Importantly, marriage is a commitment. Among the most central vows in a

marriage is the promise of fidelity. Id. at 2608. In most marriages, this means a

promise of monogamy; an agreement to share romantic intimacy and sexual relations

only with one’s spouse. Of course, not every marriage carries this commitment, but

for those that do, society expects married couples to honor it. If they do not, injury

results—personal injury to the still-faithful spouse, but also societal injury, because

a broken marriage can mean the loss of all the benefits that a healthy marriage brings

to society. See id. at 2595–97. Simply put, the State has a legitimate interest (indeed,

a substantial interest) in protecting the institution of marriage, ensuring that

married couples honor their vows, and deterring conduct that would cause injury to

one of the spouses.

       We thus turn to the critical question presented here: is the State’s need to

protect these interests sufficient to justify private tort actions that restrict one’s right

to engage in intimate sexual conduct with other consenting adults?

       We hold that it is. The Supreme Court in Lawrence recognized a liberty interest

in intimate sexual activity, but did not hold that it was a fundamental right.



                                           -7-
                                      MALECEK V. WILLIAMS

                                         Opinion of the Court



Lawrence, 539 U.S. at 578–79; id. at 605 (Scalia, J., dissenting). Instead, the Court

applied what appears to be a robust form of rational basis review. Lawrence, 539 U.S.

558. Under that standard, instead of merely asking if a law is rationally related to

some legitimate governmental interest, courts weigh the government’s asserted

interest against the right to individual liberty or equal treatment that the challengers

contend is violated. See United States v. Windsor, __ U.S. __, __, 133 S. Ct. 2675,

2694–96 (2013); Romer v. Evans, 517 U.S. 620, 631–33 (1996); Kadrmas v. Dickinson

Public Schools, 487 U.S. 450, 461–64, (1988); City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 448 (1985); Plyler v. Doe, 457 U.S. 202, 224–30 (1982). Laws that

demean individuals because of lingering prejudices or moral disapproval typically are

invalidated under this standard, but laws that further important state interests

without being rooted in bigotry or moral disapproval typically are upheld.

       Alienation of affection and criminal conversation fall into the latter category.

These causes of action do not demean the existence of any group of people. They apply

evenly to everyone. Moreover, the State’s interest in preserving these torts is strong.

As explained above, these torts deter conduct that causes personal injury; they

protect promises made during the marriage; and they help preserve the institution of

marriage, which provides innumerable benefits to our society.1


       1 Our analysis ignores those in “open” marriages where both spouses agree that they may
engage in intimacy or sexual activity outside the marriage. When the spouses agree to an open
marriage, this is a complete defense to claims of alienation of affection and criminal conversation. See



                                                 -8-
                                     MALECEK V. WILLIAMS

                                        Opinion of the Court



       To be sure, these common law torts are not the least liberty-restrictive means

of vindicating the State’s interests. For example, the State could invest in education

to deter its citizens from cheating on their spouses. And, of course, these laws only

impose liability on the third party. It arguably would be a greater deterrent to marital

infidelity to impose liability on both the third party and the cheating spouse.2

       If a higher level of scrutiny applied in this case (Dr. Williams wrongly contends

that strict scrutiny should apply here) these less liberty-restrictive alternatives would

doom the torts. But under the robust rational basis standard applied in Lawrence and

similar cases, Dr. Williams cannot prevail unless he shows that these laws stem from

lingering prejudice or moral disapproval that overshadows the State’s other reasons

for enacting them. Dr. Williams has not made that showing. Thus, under Lawrence,

our State’s common law causes of action for alienation of affection and criminal

conversation do not violate the Fourteenth Amendment.




Barker v. Dowdy, 223 N.C. 151, 152, 25 S.E.2d 404, 405 (1943); Nunn v. Allen, 154 N.C. App. 523, 536,
574 S.E.2d 35, 44 (2002).
       2 North Carolina has a criminal law that could be used to prosecute unfaithful spouses but the

State has chosen not to use it, at least in modern times. See N.C. Gen. Stat. § 14-184. This may be
because many other applications of this criminal statute are plainly unconstitutional and the State
has concerns that this application would be as well. See Lawrence, 539 U.S. at 578; Hobbs v. Smith,
No. 05 CVS 267, 2006 WL 3103008, at *1 (N.C. Super. Aug. 25, 2006) (unpublished).
       .


                                                -9-
                                  MALECEK V. WILLIAMS

                                    Opinion of the Court



   II.      Freedom of Speech, Expression, and Association

         Dr. Williams next argues that alienation of affection and criminal conversation

violate his rights to free speech, expression, and association guaranteed by the First

and Fourteenth Amendments.

         We begin with Dr. Williams’s challenge based on the First Amendment

protection of speech and expression. Dr. Williams conceded at oral argument that the

trial court found these causes of action facially unconstitutional. “In a facial

challenge, the presumption is that the law is constitutional, and a court may not

strike it down if it may be upheld on any reasonable ground.” Affordable Care, Inc. v.

N.C. State Bd. of Dental Exam’rs, 153 N.C. App. 527, 539, 571 S.E.2d 52, 61 (2002).

Thus, Dr. Williams cannot prevail on his facial challenge unless there is no

reasonable set of circumstances in which these torts would be constitutional.

         We agree with Dr. Williams that, even where the challenged causes of action

are based solely on the existence of an extra-marital sexual relationship, they can

implicate protected speech and expression. In the past, cases involving the regulation

of sexual activity typically have been viewed as regulations of conduct, not speech or

expression. For example, in a First Amendment case involving prostitution at an

adult bookstore, the Supreme Court noted that “the sexual activity carried on in this

case manifests absolutely no element of protected expression.” Arcara v. Cloud Books,

Inc., 478 U.S. 697, 705 (1986).



                                           - 10 -
                                MALECEK V. WILLIAMS

                                  Opinion of the Court



      But later cases suggest that sexual activity can carry an expressive message.

For example, in City of Erie v. Pap’s A.M., the Court held that nude, erotic dancing

involved expression that fell “within the outer ambit of the First Amendment’s

protection.” 529 U.S. 277, 289 (2000). If using one’s naked body to arouse another’s

sexual desire is a form of protected expression, it is difficult to understand why that

expressive conduct would cease once the couple embraced, as opposed to staying at

arm’s length. Moreover, in Lawrence, the Supreme Court expressly acknowledged

that one’s sexuality “finds overt expression in intimate conduct with another person.”

539 U.S. at 567. Thus, we agree with Dr. Williams that facing liability for engaging

in intimate sexual relations with a married person can implicate the First and

Fourteenth Amendment rights to free speech and expression.

      But, as with the substantive due process claim discussed above, the mere fact

that these common law claims can burden the right to free speech and expression

does not mean they must be struck down. In most applications of these torts, the

State is not concerned with the content of the intimate speech or expression that

occurs in an extra-marital relationship. Instead, the State seeks to deter and remedy

the harmful effects that result from acts that cause people to break their marriage

vows, inflict personal injury on others, and damage the institution of marriage. Put

another way, these torts may restrict certain forms of intimate speech or expression,

but they do so for reasons unrelated to the content of that speech or expression.



                                         - 11 -
                                MALECEK V. WILLIAMS

                                   Opinion of the Court



      Courts review laws that only incidentally burden protected expression under

the test established in United States v. O’Brien, 391 U.S. 367 (1968). In O’Brien, the

Supreme Court held that a ban on burning draft cards did not violate the First

Amendment because, although the law burdened the rights of citizens seeking to burn

their draft cards in political protest, the government’s interest in preventing people

from destroying their draft cards was justified by reasons unrelated to the content of

that political speech. Id. at 376–77. As the Court later explained, “[a] regulation that

serves purposes unrelated to the content of expression is deemed neutral, even if it

has an incidental effect on some speakers or messages but not others.” Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989). This type of content-neutral law will be

upheld if it “is narrowly drawn to further a substantial governmental interest, and if

the interest is unrelated to the suppression of free speech.” Clark v. Cmty. for Creative

Non-Violence, 468 U.S. 288, 294 (1984).

      These common law torts are facially valid under this standard. They further

the State’s desire to protect a married couple’s vow of fidelity and to prevent the

personal injury and societal harms that result when that vow is broken. As explained

above, preventing these personal injuries and societal harms is a substantial

governmental interest. Moreover, the State’s interest is unrelated to the content of

the protected First Amendment right. If the defendant’s actions deprived a married

person of the love and affection of his or her spouse, the State will impose liability



                                          - 12 -
                                 MALECEK V. WILLIAMS

                                   Opinion of the Court



regardless of what the defendant actually said or did. Cf. City of Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 429 (1993). Indeed, when spouses agree to an

“open” marriage that permits extra-marital intimacy or sex, that is a defense to these

claims, as is physical separation of the spouses when either spouse intends for the

separation to remain permanent. See N.C. Gen. Stat. § 52-13 (2015); Barker v. Dowdy,

223 N.C. 151, 152, 25 S.E.2d 404, 405 (1943); Nunn v. Allen, 154 N.C. App. 523, 536,

574 S.E.2d 35, 44 (2002). This undermines Dr. Williams’s argument that these laws

target extra-marital intimacy or sex because the State disapproves of expressing that

intimacy while married to someone else.

      Simply put, these torts are intended to remedy harms that result when

marriage vows are broken, not to punish intimate extra-marital speech or expression

because of its content. And, because the availability of a tort action to the injured

spouse provides both a remedy for that harm and a deterrent effect (one that benefits

the State and society without punishing any speech or expression that does not cause

these harms), the torts are narrow enough to survive constitutional scrutiny under

the O’Brien test.

      Dr. Williams also argues that these torts are facially unconstitutional because

they violate the First Amendment right to free association. The First Amendment

“restricts the ability of the State to impose liability on an individual solely because of

his association with another.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918–



                                          - 13 -
                                MALECEK V. WILLIAMS

                                   Opinion of the Court



19 (1982). But these torts do not prohibit all conceivable forms of association between

a spouse and someone outside the marriage. There are countless ways for one to

associate with a married person, form meaningful relationships, and even share

feelings and intimacy without incurring liability for alienation of affection or criminal

conversation. Moreover, when Dr. Williams articulates the specific associational

rights that he contends are impacted, his argument collapses back to arguments

about rights to intimate speech and expression. For the reasons discussed above, the

incidental   burden   on   those   rights     does   not   render   these   torts   facially

unconstitutional.

      We emphasize that our holding today does not mean that every application of

these common law torts is constitutional. There may be situations where an as-

applied challenge to these laws could succeed. Take, for example, one who counsels a

close friend to abandon a marriage with an abusive spouse. But this case, as the

parties concede, is not one of those cases. It was decided as a facial challenge on a

motion to dismiss at the pleadings stage. In the future, courts will need to grapple

with the reality that these common law torts burden constitutional rights and likely

have unconstitutional applications. For now, we hold only that alienation of affection




                                            - 14 -
                                       MALECEK V. WILLIAMS

                                          Opinion of the Court



and criminal conversation are not facially invalid under the First and Fourteenth

Amendments.3

                                             Conclusion

        For the reasons explained above, we reverse the trial court’s order and remand

this case for further proceedings.

        REVERSED AND REMANDED.

        Judges ELMORE and TYSON concur.




        3 Dr. Williams also argues that these torts violate rights to speech, expression, and privacy
guaranteed by the North Carolina Constitution. Our State Supreme Court has interpreted these rights
as co-extensive with the analogous rights in the U.S. Constitution. State v. Petersilie, 334 N.C. 169,
184, 432 S.E.2d 832, 841 (1993); In re Moore’s Sterilization, 289 N.C. 95, 98, 221 S.E.2d 307, 309 (1976).
This Court has no authority to overrule our Supreme Court’s interpretation of these state
constitutional provisions.

                                                 - 15 -
