"Neither Shall You Commit Adultery": John Edwards, John McCain, and the Relevance of Politicians' Affairs

Last month, it came to light that John Edwards, who had been one of the three leading contenders for the Democratic presidential nomination, had an affair with Rielle Hunter, a former campaign worker who had directed the production of web videos for him. Criticisms of Edwards have included the personal as well as the political: How could he cheat on his wife after her cancer diagnosis? How could he risk getting caught and dramatically reducing the Democrats' chances of reclaiming the presidency? How could he lie to the American people? In contrast, those who defend Edwards suggest that an extramarital affair is a private matter - no one's business beyond that of the people immediately involved.

Even though Edwards is no longer in the presidential race (and may no longer be a serious figure in politics), the relevance of politicians' infidelity remains a live issue. Scandal over affairs derailed much of President Bill Clinton's second term as president. And the presumptive Republican nominee for president, John McCain, has his own history of infidelity. In this column, I will weigh in on whether and why adultery matters.

Infidelity, Privacy, and the Constitution

In addition to its negative social connotations, adultery remains a criminal offense in many U.S. jurisdictions. Outside of the military, however, enforcement is rare and may be unconstitutional. In 2003, the U.S. Supreme Court suggested that private sexual relations between consenting adults are protected from governmental intrusion under the Fourteenth Amendment's Due Process Clause.

In Lawrence v. Texas, the Court struck down a law criminalizing private homosexual sodomy. One could argue (as Justice Scalia did in his dissenting opinion in Lawrence) that if homosexuality is constitutionally protected, then adultery might be as well. If so, then existing laws banning adultery could be invalid and should perhaps no more form the moral basis for a critique of Senator McCain than would a disclosure that McCain, prior to his first marriage, had had a sexual relationship with a man. On this reasoning, such matters are private and ought to concern only the people directly affected.

One could respond to these claims, however, by observing that an adulterous affair is quite different from a monogamous homosexual relationship. Adultery - by definition - involves more than simply the "consenting adults" engaged in sexual relations. It also involves a third party - the cheater's spouse - and any children the couple might have. Adultery, in other words, is not victimless, as Hillary Clinton, Elizabeth Edwards and Carol McCain would likely attest. It betrays a pre-existing relationship between two people who vowed fidelity to each other, and it betrays the trust of the couple's children, who relied on their parents' mutual commitment.

As a matter of constitutional law, in Michael H. v. Gerald D., the U.S. Supreme Court specifically singled out adulterous men as having no fundamental right to a relationship with the children they sire through adultery. This ruling stands in marked contrast to the Court's holding in Caban v. Mohammed, which endowed unmarried biological fathers with the right to develop relationships with their children.

Because adultery does have victims, it might be appropriate for voters to inquire about it, even if our society were to conclude that we no longer wanted to prosecute it as a criminal offense. That is, even if adultery is not an offense against the entire society (the way that a crime, properly defined, ought to be), it is still an act of betrayal toward one's spouse and family that could have implications for one's fitness as a public servant.

Infidelity, Recklessness, and Scandal

Some of those who strongly criticize John Edwards for his infidelity do so in spite of their own personal view that adultery is an irrelevancy. Some say, for example, that because much of the public finds adultery to be immoral, it was reckless of John Edwards to be unfaithful while attempting to become the Democratic nominee for President of the United States (and thereby asking Democrats to trust him to defeat the opposition). Such recklessness, in turn, may expose a character flaw that could later manifest itself in ways that affirmatively harm the country. For these reasons, then, the "market's" disdain for infidelity could make it a significant fact about a candidate, even from the perspective of voters who do not themselves view the fact as inherently relevant.

There are others, though, who believe that marital infidelity is a terrible offense, regardless of how it is received by the public. They believe that infidelity is a shameful and deceitful way to behave, necessarily reflecting poorly on the adulterer's character. Sean Hannity of FOX News, for example, said the following of John Edwards' infidelity: "If you're living a life that's a lie, if you're not honest, it's a character issue…. If you cheat on your wife, are you gonna be honest with your country?" If this is a legitimate question to pose regarding John Edwards, then it is a legitimate question to pose regarding John McCain as well.

Infidelity and the Two Johns

One can find both parallels and differences between the recent adultery of John Edwards and the more distant infidelity of John McCain. McCain had returned from his captivity as a Prisoner-Of-War in Vietnam when he took up with Cindy Hensley, the young woman whom he ultimately married after divorcing his then-wife, Carol McCain. John Edwards, on the other hand, was simply running for office and had not endured torture and captivity in his recent past, as McCain had.

Edwards' wife had also received a diagnosis of breast cancer prior to his affair (though, as he helpfully noted when the affair became public, the cancer had been in remission). Carol McCain did not have cancer. She did, however, wait faithfully for more than five years for her husband to return from captivity in Vietnam, while she raised their three children as a single parent. Prior to McCain's return, moreover, Carol suffered a disfiguring car accident, after which she could barely walk.

Another difference between the two Johns that may cut in Edwards's favor is that McCain is running for President on a moralistic platform. At least in the current campaign, he has courted the religious right, while emphasizing his Christianity and the importance of religion in his life. And, of course, the injunction against adultery appears in the Ten Commandments and elsewhere in the religious texts to which McCain publicly subscribes.

Because McCain presents himself as a candidate committed to a Christian approach to moral questions, it is fair to take him to task for acting contrary to his own professed religious beliefs. For this reason as well, his infidelity might appear to have greater relevance to his candidacy than would that of a candidate committed to the separation of church and state.

How Relevant Is Candidates' Infidelity?

I am generally not interested in closely examining the sexual lives of the people who run for office. To my mind, infidelity does not necessarily disqualify a person from a position of leadership. At the same time, I do consider marital infidelity an act of dishonesty and betrayal that - all other things being equal - may be relevant to one's qualification to be President of the United States.

In that spirit, I find very troubling the ingratitude and cruelty of John McCain's particular infidelity. He did not simply cheat on his wife; he subsequently dumped a woman who had waited patiently, for over five years, for his return from Vietnam, and who had cared for their children alone during that time, during which she became tragically disabled and disfigured. There is something cold and heartless about this behavior, even if one puts aside the hypocrisy.

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.