Washington Law Review


Anglo-American law has historically prohibited fornication, and through the 1960s fornication remained illegal in all but ten states. Few questioned the validity of laws proscribing various forms of private, adult, consensual sexual behavior until the early 1970s. Aside from legislative repeal, substantive due process has been the primary weapon in the fight against state sex laws. Although the U.S. Supreme Court's substantive due process jurisprudence, particularly in the area of personal privacy, has brought the constitutionality of fornication statutes into question, it has not definitively resolved the matter. This Comment argues that laws prohibiting fornication do not violate substantive due process. It reasons that fornication laws need only withstand rational basis review because history does not support a right to fornicate, and the Supreme Court's privacy jurisprudence does not encompass such a right. This Comment contends, alternatively, that even if the Court were to find a fundamental right to engage in sex, fornication laws would withstand strict scrutiny. Finally, the Comment concludes that states should pass, but not necessarily enforce, fornication laws.

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