I.R.C. § 152(b)(5) and Victorian Morality in Contemporary Life

Abstract

State and local governments, for the most part, no longer attempt to use the criminal law to impose a uniform standard of personal morals concerning intimate behavior. Some states have repealed outright the laws originally enacted to give legal sanction to religion-based standards of sexual conduct. In a substantial number of other states, statute books still include criminal laws prohibiting adultery, cohabitation, fornication, and sodomy; however, prosecutions for private, adult consensual acts violating those prohibitions are essentially nonexistent. By adopting antidiscrimination laws that establish rights to equal treatment without regard to private living arrangements, many states have in fact taken positive actions that cast doubt on the continued validity of aged "morals" statutes. Though not without atavism the courts have not opposed, and have sometimes advanced, the movement away from government involvement in intimate affairs. Nearly ten years ago a New York Supreme Court justice described a retirement-age couple's living together without formal marriage as an "enlightened and realistic approach to modern day living .... "