‘Living in sin’ is still illegal in several U.S. states

Some call it unmarital bliss. Others call it a second degree misdemeanor.

By Meagan Day

This week, Florida finally repealed a 148-year-old ban on unmarried couples living together. Your first reaction may be shock that the prohibition persisted so long, but get this: there were five Florida representatives who actually voted to keep the ban in place. Also, extramarital cohabitation by opposite-sex couples is still illegal in Mississippi, Michigan and North Carolina.

In the last 50 years, cohabitation before marriage has increased 900 percent in the U.S. Two thirds of new marriages take place between people who live together, and the average time of cohabitation before marriage is two and a half years. At the time of the last census, 7.8 million unmarried opposite-sex couples were living together (plus half a million same-sex couples). Which means anti-cohabitation laws aren’t just prudish and passé — they fly in the face of the cultural norm.

American law books are filled with outdated statutes that are hardly remembered, much less enforced. For instance, in Michigan a woman is legally bound to consult with her husband before changing her hairstyle. Antiquated toys like marbles, dominos and yo-yos are banned on Sundays in various states. And it’s against the law in North Dakota to serve beer and pretzels simultaneously. No one ever gets in trouble for violating these statutes.

Cohabitation laws are another story, though. While they aren’t enforced outright — i.e. cops don’t go around busting down love shack doors — they do rear their heads occasionally in courts of law. In her book Not Just Roommates: Cohabitation After the Sexual Revolution, Elizabeth Pleck notes several instances of discrimination between 2005 and 2010 against unmarried couples in states that ban cohabitation. In Michigan, a judge denied visitation rights to a divorced father because he was living with his new girlfriend. In North Carolina, a sheriff threatened a cohabiting female dispatcher with termination if she didn’t get married. And in West Virginia, which only recently repealed its anti-cohabitation law, a state parole board extended a prisoner’s sentence because he said he wanted to move in with his girlfriend upon release.

While some open-minded Victorians were known to shack up, and the roaring 20s saw a brief uptick in acceptance of the practice, the cultural sea change didn’t really happen until the sexual revolution of the 1960s. The countercultural message of free love and social justice movements’ rhetoric of liberation from social norms weren’t completely mainstream, but they had broad ramifications. The first challenges to cohabitation statutes took the form of campus protests, with increasing success. Meanwhile, on the national stage, in 1968 the Supreme Court granted children born out of wedlock the same legal status as those whose parents were married. The social stigma of extramarital relations was waning.

But not everyone was on board. As young unmarried Americans began to cohabitate, conservatives began a policy offensive against what they perceived as dangerous new social norm. The Old Right, which was focused on defeating Communism, gave way to the New Right, which saw itself as the vanguard of American traditional morality. Consequently anti-cohabitation laws, which had existed since the 19th century in many states, not only weathered the storm of the sexual revolution but in some cases were actually strengthened. Conservatives also began a cultural campaign to portray cohabitation as “harmful to women, a predictor of divorce, and a cauldron of domestic violence,” Pleck writes.

By the mid-1970s, cohabitation had mostly lost its ability to scandalize, and many states began to repeal the laws that the New Right had fought hard to keep in place. Still in some states, especially the South and Midwest, the laws remained, and a few new pieces of legislation were even added to the books. The Christian Right became influential in the 1980s and occasionally positioned itself against cohabitation — though it usually was too preoccupied with feminism and gay rights to make a big fuss about unseemly living arrangements.

In the 1990s, unmarried cohabitation simply became too mainstream to legislate against without seeming completely out of touch. But as the gay marriage debate heated up in the 2000s, some conservative lawmakers publicly renewed their commitment to anti-cohabitation as a way to demonstrate their belief in the sanctity of marriage. For instance, Florida state representative Dennis Baxley said in 2011 that he didn’t want to repeal the law because, “I’m not ready to give up on monogamy and a cultural statement that marriage still matters.”

The moral of the story is that anti-cohabitation legislation — unlike, say, the California ban on eating frogs that die in frog-jumping contests — is not an accidental vestige, simply overlooked and forgotten. It was and remains an issue in the American culture wars. Resistance to cohabitation has often been an oblique way to articulate resistance to other cultural phenomena, like feminism, sexual liberation and gay rights.

According to Pleck, the last (rare) recorded arrest for cohabitation happened in North Carolina in 2003. But even though people aren’t being hauled away in handcuffs for choosing to split rent, unmarried couples are still vulnerable to discrimination. In more than half of American states, marital status discrimination is not explicitly prohibited in the housing sector — which means that landlords don’t have to rent to unmarried couples if they oppose their relationship status. Additionally, since the legal definition of a “single family” usually involves marriage, two unmarried people living in a single family household are vulnerable to eviction. Employment discrimination, credit discrimination and insurance discrimination against unmarried couples are fair game in many states.

On some level, it’s astonishing that up until this week Florida had a law that prohibits opposite-sex couples to “lewdly and lasciviously associate and cohabit together.” But it’s also completely predictable when we consider that marriage is the center of gravity for a politics of family values, traditional morality and social conservatism. The idea that people can live happily and committedly without being married is anathema to those lawmakers, past and present, who believe in the inviolability of the traditional nuclear family.