Should private sexual relations require a license from a clerk of court?

Anchorage Daily News, March 25, 2011:

One blog post on the Eagle Forum Alaska site praised efforts at criminalizing adultery in Michigan, and Paskvan asked [AK Judicial Nominating Commission appointee Don] Haase if he thought it should be a felony in Alaska.”I don’t see that that would rise to the level of a felony,” Haase said.

Paskvan: “Do you believe it should be a crime?”

Haase: “Yeah, I think it’s very harmful to have extramarital affairs. It’s harmful to children, it’s harmful to the spouse who entered a legally binding agreement to marry the person that’s cheating on them.”

Paskvan: “What about premarital affairs — should that be a crime?”

Haase: “I think that would be up to the voters certainly. If it came before (the state) as a vote, I probably would vote for it … I can see where it would be a matter for the state to be involved with because of the spread of disease and the likelihood that it would cause violence. I can see legitimate reasons to push that as a crime.”

A marriage license is, in the end, a government license. Adultery in Maryland is technically a crime (and kept so primarily to reduce perjury in divorce cases under the 5th Amendment and MD Declaration of Rights against self-incrimination), but sexual relations in private between adults who have NO marriage licenses with anybody is not a criminal offense.

The idea that sex in private should be criminalized is just madness. Of course, under Lawrence v. Texas, same-sex sexual behavior in private not done for money cannot be prosecuted if straight sex is lawful, but I am not certain that Lawrence v. Texas would protect a non-discriminatory provision barring ALL sex outside of marriage (i.e. virtually all gay sex except for a few states and the lion’s share of straight sex as well.)

I hope that Maryland tries passing such an asinine law; it would be great for the criminal defense bar until it were repealed, stayed or struck down. I can just imagine the probable cause statements now; they would read like poorly written pornography.

“I observed the suspects in a state of partial nudity parked in a ’06 Corolla behind the drive-in of a Chick-Fil-A in Glen Burnie, Anne Arundel County, Maryland, and observed suspect A remove the hot pink undergarments of suspect B…. Upon the removal of the third undergarment, I concluded upon my TKE (training knowledge and experience) that a violation of Md. Ann. Code CR article section 10-503, unauthorized copulation, was about to take place. I rapped the butt of my service weapon against the rear passenger window, which at that moment had become partially obscured by a layer of fog….