Repealing Morality Laws Advances, But Not Without Sinful Debate

February 22, 2013
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A House panel voted Thursday to repeal an old statute criminalizing adultery

DENVER– The state House Judiciary Committee voted to advance a bill that would repeal laws against adultery and promoting immorality, Thursday – but not without impassioned debate about the message the legislature is sending.

Some wonder if Colorado will be viewed as a wilder “Wild West” state – restricting guns, legalizing same-sex unions, selling marijuana souvenirs to tourists and sanctioning extramarital trysts.

“We’re branding Colorado as a very liberal state where anything goes but owning a gun,” said state Rep. Bob Gardner (R-Colorado Springs), a member of the House Judiciary Committee.

The bill to scrap adultery and moral clauses from state statutes, sponsored by state Rep. Daniel Kagan (D-Greenwood Village) and Sen. Pat Steadman (D-Denver), would repeal criminalization of adultery, deviant sexual conduct and promoting immorality by accommodating such behavior.

The law, dating back to Colorado’s territory days, was based on English Common Law.  It has resulted in just 10 prosecutions and two convictions of promoting immorality since 2007. No one could recall the last time anyone was charged with adultery.

Noting that the laws to be repealed have laid dormant for decades with the exception of “promoting immorality,”Gardner said that they are unenforceable under the doctrine of desuetude in theUnited States.”

“So because the (law) is unenforceable, it is probably a social statement more than it is a criminal law,” said Gardner, a Colorado Springs attorney. “Why are we spending the time on this?”

“I understand why you have concerns because in British Common Law the doctrine of desuetude was not favored at all in England,” said Gardner to Kagan, the son of Lord Joseph Kagan knighted by former British Prime Minister James Harold Wilson.

However, adultery may be a sensitive subject for Kagan, whose millionaire father’s rumored infidelity was subject of several British publications and blogs.

In 1978, Lord Kagan, age 63, abandoned his family and took his 23-year-old mistress to Europe to avoid facing charges of fraud to evade taxes in Great Britain. Sir Kagan was later arrested in Paris, stood trial in London, paid a massive fine and served time in the Rudgate Prison in Yorkshire.

During the committee hearing, Kagan said that police should not be empowered to ask who a person has slept with.

Asked if he knew anyone who had been subjected to police inquires about acts of adultery, Kagan said no.

“I do not know how many spouses have been to the police and complained of acts of adultery,” said Kagan.  “I do not know how many people have been intimidated and harassed.”

“Not everything of which we disapprove should be made illegal,” declared Kagan.

“I disapprove of lying. I disapprove of swearing,” said Kagan. “And I disapprove of adultery, but I don’t want that issue to be the police’s business.”

The ACLU supports Kagan’s bill; Colorado for Family Action, the governmental affairs division of Focus on the Family, opposes it.

Loren Richmond, pastor of East Baptist Bible Church in Denver’s Five Points community, said that he opposes House Bill 1166 because by removing those laws, “the state is essentially condoning this behavior and down playing its harmful effects.”

“The state of Colorado should not encourage this behavior and its far reaching ramifications to the culture, the society and children,” said Richmond.

Father Bill Carmody of the Colorado Springs Catholic diocese said the law is important because it states a standard like setting a speed limit that is for the protection of human life.

“We have the law to promote the dignity of people,” said Carmody. “Adultery is a violation of human dignity… I guarantee you, it carries a penalty spiritually.”

But, state Rep. Michael McLachlan (D-Durango) said, “A person can be a law abiding citizen and at the same time commit a moral sin.”

McLachlan said the law against adultery is hypocritical because there are no real penalties.

“We don’t need laws like this. So thank you very much,” McLachlan told Father Carmody.

The committee passed House Bill 1166 on a 8 – 3 vote with Republican state Reps. Gardner, Polly Lawrence of Littleton and Jared Wright of Grand Junction opposing the bill.

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