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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
9th Circuit Court-Manchester Family Division
No. 2020-0211
IN THE MATTER OF MOLLY BLAISDELL AND ROBERT BLAISDELL
Submitted: January 14, 2021
Opinion Issued: April 1, 2021
Joshua Gordon, of Concord, for the petitioner, filed no brief.
Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein on the
brief), for the respondent.
DONOVAN, J. In this interlocutory appeal, the respondent, Robert
Blaisdell, challenges a decision of the Circuit Court (McIntyre, J.) granting a
motion to dismiss his cross-petition for divorce on fault grounds of adultery
alleging sexual intercourse between the petitioner, Molly Blaisdell, and another
woman based upon In the Matter of Blanchflower & Blanchflower, 150 N.H.
226, 227-28 (2003), which limited the definition of adultery under RSA 458:7,
II (2018) to sexual intercourse between persons of the opposite sex. Today, we
overrule Blanchflower and reinterpret the term “adultery,” as it is used in RSA
458:7, II, to include sexual intercourse between a married person and someone
other than that person’s spouse, regardless of either person’s sex or gender.
Accordingly, we reverse the decision of the circuit court and remand for further
proceedings.
I. Factual and Procedural History
The following pertinent facts are supported by the record or undisputed
on appeal. In January 2019, the petitioner filed for divorce from the
respondent on grounds of irreconcilable differences. In March 2019, the
respondent filed an answer and a cross-petition for divorce on fault-based
grounds of adultery, alleging an ongoing intimate relationship between the
petitioner and another woman. In October 2019, the petitioner filed a motion
to dismiss the fault-based claims of adultery, arguing that “New Hampshire
[law] clearly states that adultery under RSA 458:7, II does not include
homosexual relationships,” see Blanchflower, 150 N.H. at 227-28, and,
therefore, the respondent’s “allegation of fault grounds based on a supposed
homosexual relationship is contrary [to] the law and must be dismissed.” In
November 2019, the circuit court granted the motion to dismiss the
respondent’s cross-claim in a one-sentence margin order stating: “Based on the
holding in [Blanchflower].” This Rule 8 interlocutory appeal followed. See Sup.
Ct. R. 8.
II. Blanchflower and Subsequent Developments in the Law
The narrow question before the court in Blanchflower was “whether a
homosexual [intimate] relationship between a married person and another
constitutes adultery within the meaning of RSA 458:7, II.” Blanchflower, 150
N.H. at 227. In answering that question, we defined “adultery” as “voluntary
sexual intercourse between a married man and someone other than his wife or
between a married woman and someone other than her husband.” Id. (quoting
Webster’s Third New International Dictionary 30 (unabridged ed. 1961)).
Further, we defined “sexual intercourse” as a “sexual connection esp. between
humans: COITUS, COPULATION,” and defined “coitus” as requiring “insertion
of the penis in the vagina.” Id. (quoting Webster’s Third New International
Dictionary 441, 2082 (unabridged ed. 1961)). We observed that case law
addressing adultery “support[s] the inference that adultery meant intercourse.”
Id. at 228. We also explained that adultery as a ground for divorce was
historically equated with the crime of adultery, which was defined as
“intercourse from which spurious issue may arise.” Id. (quotation omitted).
Based upon the foregoing, we concluded that “adultery under RSA 458:7, II
does not include homosexual relationships.” Id.
In 2009, six years after Blanchflower was decided, the New Hampshire
legislature enacted a statute that redefined marriage as “the legally recognized
union of [two] people” and declared that “[a]ny person who otherwise meets the
eligibility requirements of this chapter may marry any other eligible person
regardless of gender.” RSA 457:1-a (2018). Additionally, the legislature
adopted provisions converting existing civil unions into marriages by operation
2
of law, RSA 457:46, II (2018), and recognizing same-sex marriages and civil
unions from other jurisdictions as legal marriages, RSA 457:3, :45 (2018). In
2015, after same-sex marriage was adopted by statute in New Hampshire, the
Supreme Court of the United States held that state laws denying marriage to
same-sex couples violate the Federal Constitution. See Obergefell v. Hodges,
135 S. Ct. 2584, 2607-08 (2015).
III. Stare Decisis Analysis
On appeal, the respondent invites us to overrule Blanchflower to the
extent that it limits the definition of adultery to extramarital, sexual
intercourse between persons of the opposite sex. The respondent contends
that, given the statutory right of same-sex couples to marry, RSA 457:1-a, the
court’s construction of RSA 458:7, II in Blanchflower is now discordant with
the overall legislative scheme governing marriage in New Hampshire because it
prohibits an adultery claim under RSA 458:7, II with respect to unfaithful
spouses in same-sex marriages. The respondent further asserts that a stare
decisis analysis weighs in favor of overruling Blanchflower, and that a proper
interpretation of RSA 458:7, II requires as much. We accept the respondent’s
invitation to revisit our holding in Blanchflower.
Stare decisis, the idea that today’s court should stand by yesterday’s
decisions, commands great respect in a society governed by the rule of law, and
we do not lightly overrule a prior opinion. Seacoast Newspapers v. City of
Portsmouth, 173 N.H. 325, 333 (2020). “Thus, when asked to reconsider a
holding, the question is not whether we would decide the issue differently de
novo, but whether the ruling has come to be seen so clearly as error that its
enforcement was for that very reason doomed.” Id. (quotation omitted).
We will overrule a decision only after considering: (1) whether the rule
has proven to be intolerable simply by defying practical workability; (2) whether
the rule is subject to a kind of reliance that would lend a special hardship to
the consequence of overruling; (3) whether related principles of law have so far
developed as to have left the old rule no more than a remnant of abandoned
doctrine; and (4) whether facts have so changed, or come to be seen so
differently, as to have robbed the old rule of significant application or
justification. Id. Although these factors guide our judgment, no single factor is
dispositive. Id.
First, with respect to the initial stare decisis factor, Blanchflower may
have provided a workable rule, but it is no longer practical given that it defies
any application to an entire class of legally married persons. Limiting adultery
to heterosexual relationships also undermines the legislative intent underlying
same-sex marriage laws. Accordingly, we conclude that the first factor weighs
in favor of overruling Blanchflower.
3
Second, we consider whether Blanchflower’s interpretation of the
adultery statute is subject to a kind of reliance that would lend a special
hardship to the consequence of overruling it. See id. Reliance interests are
most often implicated when a rule is operative in the commercial law context
where advance planning of great precision is most obviously a necessity. Id.
We agree with the respondent that no such reliance interests are implicated by
Blanchflower’s interpretation of RSA 458:7, II.1 As the respondent observes,
individuals rely on their sexual preferences and romantic sensibilities when
deciding with whom to be intimate, not judicial decisions.
Third, we consider whether related principles of law have developed such
that the old rule is no more than a remnant of an abandoned doctrine. Id.
This factor concerns whether the law has developed in such a manner as to
undercut the prior rule. State v. Balch, 167 N.H. 329, 335 (2015). Such
development could arise upon the promulgation of new laws or rules that
render past decisions obsolete or upon the formulation of laws across multiple
jurisdictions in a manner that is discordant with the prior rule. Id. As we have
already explained, New Hampshire adopted same-sex marriage by statute in
2009, see RSA 457:1-a, and, as the Supreme Court determined in Obergefell,
the Federal Constitution forbids any jurisdiction in the United States from
maintaining laws prohibiting same-sex marriage.2 Obergefell, 135 S. Ct. at
2607-08. After many years of same-sex couples seeking “equal dignity in the
eyes of the law” by way of legally recognized marriages, the Supreme Court
determined that “[t]he Constitution grants them that right.” Id. at 2608. It
defies logic to suggest that our legislature and the Supreme Court recognized
the rights of same-sex couples to enter into legally valid marriages without also
intending that same-sex couples be endowed with all of the responsibilities,
protections, and grounds for divorce that are associated with the legal status of
1 Even if a person were to have engaged in an extramarital affair with a person of the same sex in
reliance on Blanchflower to insulate them from a fault-based divorce action, reliance on judicial
precedent to protect marital infidelity is not the type of reasonable reliance that the second factor
of the stare decisis analysis seeks to protect. See State v. Duran, 158 N.H. 146, 157 (2008)
(“Under the second . . . factor, we inquire into ‘the cost of a rule’s repudiation as it would fall on
those who have relied reasonably on the rule’s continued application.’” (emphasis added)) (quoting
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855 (1992)).
2 Notwithstanding these developments, the full extent of the rights and protections intended to
flow from them have been limited by statutes that are no longer consonant with the current
definition of marriage. See, e.g., RSA 460:2-a (2018) (“A man and woman in contemplation of
marriage may enter into a written interspousal contract . . . .” (emphasis added)); RSA 458:7,
VIII (2018) (providing a fault ground for divorce “[w]hen either party has joined any religious
sect or society which professes to believe the relation of husband and wife unlawful, and has
refused to cohabit with the other for 6 months together” (emphasis added)). The legislature
may wish to review these statutes to address these anomalies.
4
marriage. Blanchflower’s rule limiting the statutory definition of adultery to
sexual intercourse between persons of the opposite sex removes the legal
protection of the marital promise of fidelity from same-sex marriages, and is
clearly a remnant of the abandoned doctrine denying same-sex couples the
right to enter into legally valid marriages.
Fourth, we ask whether facts have so changed, or come to be seen so
differently, as to have robbed the old rule of significant application or
justification. Seacoast Newspapers, 173 N.H. at 334. The institution of
marriage “has not stood in isolation from developments in law and society,”
and “[t]he history of marriage is one of both continuity and change.”
Obergefell, 135 S. Ct. at 2595. When Blanchflower was decided, the law and
public opinion surrounding the rights of same-sex couples to engage in
intimate association and marriage had already begun to transform. See
Lawrence v. Texas, 539 U.S. 558, 578 (2003) (holding that the Due Process
Clause of the Federal Constitution protects the right of same-sex couples to
enjoy intimate association); Goodridge v. Department of Public Health, 798
N.E.2d 941, 969 (Mass. 2003) (holding that “barring an individual from the
protections, benefits, and obligations of civil marriage solely because that
person would marry a person of the same sex violates the Massachusetts
Constitution”). Indeed, the dissent in Blanchflower argued that to “strictly
adhere to the primary definition of adultery in the 1961 edition of [the
dictionary] . . . is to avert one’s eyes from the sexual realities of our world.”
Blanchflower, 150 N.H. at 230 (Brock, C.J., dissenting). Significant change
continued in the years that followed Blanchflower, including the legal
recognition of same-sex marriage in New Hampshire, and shortly thereafter,
across the United States. See RSA 457:1-a; Obergefell, 135 S. Ct. at 2607-08.
These developments have left the rule derived from Blanchflower without
justification, rendering any application of the rule inconsistent with the current
state of the law.
In sum, the view of the institution of marriage underpinning our holding
in Blanchflower has changed in the eyes of the law and society. Thus, at the
conclusion of our stare decisis analysis, three factors weigh in favor of
overruling, and the second factor — dealing with reliance interests — is not
implicated in this case. Accordingly, we overrule Blanchflower to the extent
that it limits the definition of “adultery,” as that term is used in RSA 458:7, II,
to sexual intercourse between persons of the opposite sex.
IV. Reinterpretation of RSA 458:7, II
Having overruled Blanchflower, we next take the opportunity to
reinterpret the term “adultery,” as it is used in RSA 458:7, II, because the issue
is likely to arise on remand. In matters of statutory interpretation, we are the
final arbiter of the intent of the legislature as expressed in the words of the
statute considered as a whole. Petition of Carrier, 165 N.H. 719, 721 (2013).
5
We first look to the language of the statute itself, and, if possible, construe that
language according to its plain and ordinary meaning. Id. We interpret
legislative intent from the statute as written and will not consider what the
legislature might have said or add language that the legislature did not see fit
to include. Id. We construe all parts of a statute together to effectuate its
overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not
consider words and phrases in isolation, but rather within the context of the
statute as a whole. Id. This consideration of the statute, as a whole, enables
us to better discern the legislature’s intent and to interpret statutory language
in light of the policy or purpose sought to be advanced by the statutory
scheme. Id.
RSA 458:7 provides, in part: “A divorce from the bonds of matrimony
shall be decreed in favor of the innocent party for any of the following causes: .
. . II. Adultery of either party.” “Adultery” is defined as “voluntary sexual
intercourse between a married man and someone other than his wife or
between a married woman and someone other than her husband.” Webster’s
Third New International Dictionary 30 (unabridged ed. 2002). “Sexual
intercourse” is defined as either “heterosexual intercourse involving penetration
of the vagina by the penis: COITUS” or “intercourse involving genital contact
between individuals other than penetration of the vagina by the penis.” Id. at
2082.
The respondent observes that this court does “not construe statutes in
isolation; instead, we attempt to do so in harmony with the overall statutory
scheme,” Estate of Gordon-Couture v. Brown, 152 N.H. 265, 272 (2005). He
also argues that defining the term “adultery” to include sexual intercourse
between persons of the same sex would harmonize RSA 458:7, II and RSA
457:1-a, both of which are part of the legislative scheme governing marriage.
To do the opposite, the respondent contends, would be to interpret those two
statutes in contradiction with each other in contravention of our rules of
statutory interpretation because “[w]e generally assume that when the
legislature enacts a provision, it has in mind previously enacted statutes
relating to the same subject matter.” Prof. Fire Fighters of Wolfeboro v. Town of
Wolfeboro, 164 N.H. 18, 22 (2012). We agree with the respondent.
Limiting the definition of adultery to sexual intercourse between two
persons of the opposite sex would be inconsistent with the legislature’s
enactment of same-sex marriage over a decade ago, resulting in RSA 457:1-a
permitting two people to marry regardless of either person’s sex and in RSA
458:7, II incongruously providing that infidelity may be a ground for divorce
only if it is committed between people of the opposite sex. Such an
interpretation would not effectuate the statute’s overall purpose of protecting
the marital promise of fidelity in all legally recognized marriages and would
lead to an absurd and unjust result. Although the dictionary retains the
6
definition of “sexual intercourse” that we used to reach our decision in
Blanchflower, it now includes a definition that is applicable regardless of the
sex or gender of the persons engaged in the described conduct. See Webster’s
Third New International Dictionary 2082 (unabridged ed. 2002) (defining sexual
intercourse as “intercourse involving genital contact between individuals other
than penetration of the vagina by the penis”). This broader definition is better
suited to today’s marital legal landscape. See RSA 457:1-a; Obergefell, 135 S.
Ct. at 2607-08.
Moreover, interpreting RSA 458:7, II to provide that spousal infidelity
may be a ground for divorce only in marriages between persons of the opposite
sex is constitutionally suspect in light of the Supreme Court’s holding in
Obergefell, and “‘where an otherwise acceptable construction of a statute would
raise serious constitutional problems, the Court will construe the statute to
avoid such problems unless such construction is plainly contrary to [legislative]
intent.’” Polonsky v. Town of Bedford, 171 N.H. 89, 96 (2018) (emphasis and
brackets omitted) (quoting DeBartolo Corp. v. Fla. Gulf Coast Trade Council,
485 U.S. 568, 575 (1988)). Accordingly, for purposes of RSA 458:7, II, the term
“adultery” is defined as voluntary sexual intercourse between a married person
and someone other than that person’s spouse, regardless of the sex or gender
of either person. For purposes of this definition, “sexual intercourse” shall
include heterosexual intercourse involving penetration of the vagina by the
penis, and intercourse involving genital contact other than penetration of the
vagina by the penis.3
V. Retroactive Application
Finally, the respondent requests that we clarify the applicability of our
ruling to this case on remand. In her motion for summary disposition of this
appeal, the petitioner requested that this case be remanded with “instructions
that any change in the law does not apply retroactively.” “At common law,
appellate decisions were presumptively retroactive because, by stating what the
law is, the court merely stated what the law always was.” Lee James
Enterprises, Inc. v. Town of Northumberland, 149 N.H. 728, 729-30 (2003).
“We have recognized, however, that retroactive application of judicial decisions
at times can cause harsh results, when, consistent with the doctrine of stare
decisis, parties have relied upon a prior rule of law.” Id. at 730. Therefore, we
may apply a decision prospectively when “justice would be better served by
doing so.” Id.
3 We observe that, in a very different context, the legislature has more broadly and precisely
defined “sexual contact” and “sexual penetration” in the Criminal Code. See RSA 632-A:1, IV; V
(Supp. 2020). Whether these definitions should apply to adultery claims in the context of marital
law involves policy considerations best suited for the legislature.
7
In this case, as explained above, we have considered whether
Blanchflower’s interpretation of the adultery statute is subject to a kind of
reliance that would lend a special hardship to the consequence of overruling it,
and concluded that it is not. Consistent with that determination, we further
conclude that justice would not be better served by applying our decision only
prospectively. Accordingly, our decision today shall apply retroactively. See id.
Reversed and remanded.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
8