VONFELDT v. GRAPSY

Filing 25

ORDER signed by Judge Thomas D. Schroeder on 03/30/2017. The court adopts the Magistrate Judge's Recommendation. The Defendant's Motion to Dismiss 6 is DENIED. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

THEODORE P. VONFELDT,
Plaintiff,
v.
MARK A. GRAPSY,
Defendant.

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1:16CV1179

ORDER
The Recommendation of the United States Magistrate Judge was
filed with the court in accordance with 28 U.S.C. § 636(b) and, on
February 14, 2017, was served on the parties in this action. (Docs.
22, 23.)

Defendant objected to the Recommendation.

(Doc. 24.)

Of Defendant’s objections, two warrant discussion.
First,

Defendant

asserts

that

the

Recommendation

rational basis review to his due process argument.

applies

In fact, the

Recommendation merely notes that Lawrence v. Texas, 539 U.S. 558,
578 (2003), does not apply strict scrutiny, and the Recommendation
uses the language that Lawrence used (i.e., whether the State law
"furthers" a "legitimate interest”?).

Where the Recommendation

makes references to the "rationality" or "irrationality" of the
State laws, it does so only in addressing specific arguments
Defendant made using such terminology.
Second,

Defendant

raises

arguments

based

on

the

First

Amendment’s guarantee of freedom of association.
9.)

(Doc. 24 at 8-

Defendant’s motion (and supporting brief) did not present

that ground for dismissal; rather, Defendant’s First Amendment
argument expressly (and exclusively) addressed freedom of speech.
This does not prevent this court’s review of this additional legal
theory offered, however.

United States v. George, 971 F.2d 1113,

1118 (4th Cir. 1992), as amended (Aug. 12, 1992).
The court has carefully considered Defendant’s arguments on
freedom of association but finds them to be without merit.
put,

as

explained

in

the

Recommendation

(Doc.

22

adultery is not protected under the First Amendment.

at

Simply
14-21),

Suddarth v.

Slane, 539 F. Supp. 612, 617 (W.D. Va. 1982) (“[A]dultery is not
protected by the First Amendment.”).
Defendant cites Roberts v. U.S. Jaycees, 468 U.S. 609, 617
(1984), for the proposition that the State may not unduly interfere
with one’s choice to enter into and maintain certain intimate human
relationships.

(Doc. 24 at 10-11.)

Roberts dealt with whether a

State could compel a national nonprofit membership corporation to
admit women as regular members.

Contrary to Defendant’s argument

(id.), the case did not hold that adulterous relationships are
“clearly protected” under the First Amendment.
Defendant also cites Snyder v. Phelps, 562 U.S. 443 (2011),
to argue that the tort of alienation of affections is not shielded
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from constitutional infirmity merely because it has malice as an
element.

(Doc. 24 at 9.)

In Snyder, the father of a deceased

military service-member brought action against a church whose
congregation

protested

the

service-member’s

funeral.

The

defendants’ protests were held to be protected under the First
Amendment because they were a matter of public concern.
562 U.S. at 454-59.

Snyder,

Defendant argues that his “innocuous speech

imploring one to leave a marriage” is surely protected if the
Snyder defendants’ intentional speech was protected.

(Id. at 10.)

Like Roberts, Snyder also fails to stand for the proposition that
the freedom of association protected under the First Amendment
extends to adulterous relationships.
Recommendation,
opposite.

courts

addressing

Indeed, as explained in the
the

issue

have

found

the

See Marcum v. McWhorter, 308 F.3d 635, 642 (6th Cir.

2002) (“[W]e decline to accord Marcum's adulterous relationship
the constitutional protection afforded those intimate associations
which receive protection as a fundamental element of personal
liberty.”); Wilson v. Swing, 463 F. Supp. 555, 563 (M.D.N.C. 1978)
(“The Court is of the opinion that adultery is not protected by
the First Amendment’s guarantee of freedom of association.”).
In

light

of

all

the

objections

raised,

the

court

has

appropriately reviewed the portions of the Magistrate Judge’s
report

to

which

objection

was

made
3

and

has

made

a

de

novo

determination, which is in accord with the Magistrate Judge’s
report.

The

court

therefore

adopts

the

Magistrate

Judge’s

Recommendation.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss
(Doc. 6) is DENIED.

/s/ Thomas D. Schroeder
United States District Judge
March 30, 2017

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