9th Circuit Court: Constitution Protects Adultery

“… The due process clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are … married or unmarried…”

Circuit Court of Appeals photo

Photo by Ken Lund (CC)

(Kevin Daley, Daily Caller News Foundation) The 9th U.S. Circuit Court of Appeals ruled Friday that the Roseville, Calif., police department violated the Constitution when they fired a probationary officer for having an extramarital affair with a colleague.

The decision contradicts rulings in other federal appeals courts on similar issues, suggesting the Supreme Court may soon intervene.

The case was occasioned when an internal affairs investigation revealed that officers Shad Begley and Janelle Perez were engaged in an adulterous relationship. Though the inquiry did not yield evidence suggesting they had sexual encounters while on-duty, Perez was subsequently fired. The department claimed she was dismissed for unrelated conduct, though her superiors later admitted they morally disapproved on the Begley-Perez affair.


Perez then sued the city, arguing her termination violated her constitutional rights to privacy and intimate association.

A federal trial court sided with the city but a three-judge panel of the 9th Circuit reversed. Judge Stephen Reinhardt’s opinion for the panel explained the Supreme Court forbade the state taking adverse actions against individuals because they disapprove of private sexual conduct, in a 2003 case called Lawrence v. Texas. In that case, a 6-3 Court struck down a state law criminalizing homosexual sodomy.

Pointing to the Lawrence decision, Reinhardt said the police department was wrong to attach a stigma to Perez’s adulterous conduct and take retaliatory action against her.

“As the [Supreme] Court explained, the liberty protected by the due process clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are of the same sex or not, married or unmarried,” he wrote.

The opinion suggests Perez could be fired if her affair substantially affected her on-duty performance.

The 5th and 10th U.S. Circuit Courts have taken the opposite position in similar cases. The 5th Circuit upheld the termination of two Bossier Parish sheriff’s deputies in 2017, after the pair essentially switched wives and sought divorces from their legal spouse. A decade earlier in 2008, the 10th Circuit sanctioned the dismissal of a female officer for having an affair, finding there is no “fundamental liberty interest ‘to engage in a private act of consensual sex.’”

The Supreme Court often takes cases when multiple appeals courts disagree over the same question of law. Given the gravity of the issue and the split between the circuits, the justices may review this case, or a similar one, in the near future.

The case will now return to the trial court for further proceedings.

Republished with permission from the Daily Caller News Foundation via iCopyright license

  • Yosemite Sam

    The 9th Circuit Court, is itself adulterous, considering the unconstitutional legal decisions it has rendered over the decades.

    • RealAmerican407

      They forced Arizona to begin issuing driver licenses to illegals.

      • SoManyWhiners

        Arizona could have always taken this to high court but they caved.

        • RealAmerican407

          Arduous, extremely expensive and a gamble at best. Yes they caved.

      • Yosemite Sam

        Speaking of Arizona, I so appreciate Sheriff Joe Arpaio. That man is rock solid, with a rock solid spine to match.

        Too bad Arizona has two spineless [RINO] US Senators [McCain / Flake].

    • Richard Kujath

      Adulterous? Like Trump?

      • Yosemite Sam

        I will take [one] Donald J Trump, over [a million] Barack HUSSEIN Obama any day of the week. Additionally Donald J Trump is not a Saint, either is Barack HUSSEIN Obama. What Donald J Trump is is a Christian, whereas Barack HUSSEIN Obama is a Muslim. Donald J Trump is rocking the US economy. Barack HUSSEIN Obama crippled the US economy. Donald J Trump is bring manufacturing corporations back to the United States. Barack HUSSEIN Obama place the full weight of government regulations upon the necks of corporate America, driving manufacturing overseas and with it American jobs vanished.


      • John

        No like BILL CLINTON, and JFK who each spent most of their Presidencies with their pants at their ankles.

  • Ezra

    The husband or wife in the marriage has no right to know about the adulterous affair of the other.

    • kate777

      Why so?

      • Ezra


        (but based upon these ignorant court rulings it could come down to that)

  • Benton Marder

    So, the Ninth Circuit thinks they can over-rule the Commsndment of God the Lod. do they?

    Next thing we hear will be that they have negated the rest of the Ten Perhaps they already have.

    • Garys_opinion

      Who is God the Lod? And what are the rest of the Ten Perhaps that they negated?

      • omikehawk

        Surprised that you can’t figure it out!

        • Garys_opinion

          You are ? It doesn’t seem to be a complete thought , or even English .

  • RealAmerican407

    The 9th is the tip of the spear in the left coast’s quest to uproot America.

    • richjack4

      Of course they would decide such. After all, there is a reason why over 80% of their decisions are overturned by the Supreme Court!

  • bornamericanandproud

    So I guess they’re going to have to rehire all of those military officers that the military is kicked out for having affairs…

  • Matthew Atwater

    Bogus ruling those police officers are supposed to be doing their JOB period! Protecting society and not getting LAID on the job! They all need to be fired especially those BOGUS judges who are perverted and enablers and setting a horrible example. As for the adultery as long as it was off duty and consensual? We don’t know all the facts? That’s why all woman belong in the kitchen at home making babies and changing diapers and taking care of the house! The workplace wouldn’t be so screwed up with all this BOGUS litigation.

    • JanelleH

      I worked for multiple companies with both sexes for decades and never had any problems. Or caused any that I was aware of either.

    • Maxine Albritton

      that is true. it is also a thing mostly of the past. It is good that woman can work if they have to, but it is nice to stay home with the children you need to raise.

  • Garys_opinion

    What people do privately, outside of work is not Governments business as long as it doesn’t affect their job performance.

  • Ronald Show

    The 9th circuit needs to read the constitution!! They’ve had more decisions overturned than any other circuit . The idiots on this court need to be disbarred!!!!

    • Joe Phillips

      Ronald Show, you are correct. Most times they follow the money.

  • regulus30

    This court is over turned 75% of the time; it won’t stand;;Communist/california should be traded to Mayheeco for a truck load of avocados.

    • Joe Phillips

      Mayheeco would be getting a bad deal.

  • ImOffendedTreatMeSpecial

    The next thing you know the 9th circus will strike down laws regarding pedophiles.

    • Greg

      They already have child Prostitution is a Misdemeanor now in California and carry’s a firm ticket…Sex is the 9th circuit’s religion.

      • Naval Lint

        And Cali is now looking to release Kiddy Pimps back onto the streets…as “NON-VIOLENT” offenders!!

  • Al Chemist

    The liberals on the left coast are busy trying to turn this Republic into an immoral, secular, commie society…and they are already partially successful in California. Oh, well, the Lord will sort them all out sooner or later.

  • Harvey Mitterdorf

    Do you really want the “state” to tell you what you can or cannot do concerning issues of morality?

    • Greg

      Character matters Harvey.

      • Harvey Mitterdorf

        Of course character matters. In fact, character is the ONLY thing that ultimately matters at all. I didn’t even address that issue. I was merely pointing out that it is NOT a good thing to allow the “state” to be the police for moral issues. They don’t even know what true morality is.

  • Greg

    If you cheat on your spouse you are of poor character and do not belong anywhere in the justice system.PERIOD

    9th circuit is nucking futs 99.786% of the time

    • Gnowark

      0.214% of the time correct? To me, you overestimate the 9th’s use of logic.

  • rocky63

    The 9th circuit is the home of baboons. They are so wildly, extremely and ignorantly socialist-communist in their thinking that they can’t be trusted to make ANY sensible decisions. They do more damage to American than just about any other group. They need to be treated by the Supreme Court as if they were uneducated 1st graders — which is probably a higher level of intelligence than they REALLY possess.

  • Harry Pearson

    There is a reason both the military and police do not allow any romantic affairs, whether or not they are sexually based, between people who work together. In this particular case, Roseville is a small community with a relatively small police department and having officers in a romantic affair does cloud their judgement. They may hesitate, that one second, if they perceive that their “partner” may be in danger, or may be put in danger. What is reason enough not to allow this type of affair and the 9th Circuit needs to think about this and reassess their decision.

  • Maxine Albritton

    If this couple were not taking personal time from their job. It is unfortunate that two marriages were broken but personally what they do on their own time would be their business. adultery is still a sin, oops.

    • Gnowark

      But does a police department NOT have the right to terminate a probationary employee if they will be considered 24/7 representing an enforcement branch after probation? F’ristance: Would theft of private property be OK’d if done on their own time while on probation?

  • SoManyWhiners

    The 9th has no business in this, it is NOT a Constitutional right to have an affair and if they have a business code against this, then be gone. She is luckily they no longer mark a woman cheek for something like this.

  • SoManyWhiners

    While it should not matter to an employer about an affair, the court cannot rule this activity Constitutional just because they want it that way, they need to follow the constitution and not makeup their own laws. This activity has no place in the constitution.

    • Naval Lint

      I was unaware of ANYTHING related to sexual relationships in our Constitution…did I MISS something?

      • SoManyWhiners

        Maybe it is the pursuit of happiness ???

  • minefinder624

    The Constitution as I understand it, doesn’t expressly prohibit many activities which may take place in the work environment. Many jobs/ professions may , however prohibit activities which the Constitution may not prohibit. (ie moral , ethical , etc provisions which the job/ profession emphasises and requires) That’s why certain professions have Boards which can dismiss a member for violating those provisions even though the Constitution doesn’t directly address any of the activities which may have led to the dismissal. I don’t see where the adultery in this case led to the dismissal of both participants which I would consider discriminatory. Probably will see a #METOO action by Janelle if she is the only one to be dismissed.

  • Alan

    The judges on the 9th circus deserve to be sodomized.

  • Joseph Abraham

    If the ninth circuit court states it you can 99% of the time know that its just the opposite.

  • gregory alan johnson

    This, in part, is why YHVH’s Torah must replace the Constitution, in the name of Yeshua, Amen.

  • David

    Another case of Judicial decisions making law, neither the CONSTITUTION or the Bill of rights says anything about adultery!

  • 615GEJ1

    Scotus must over rule the rabid 9th Circuit Court.

  • Rusty Landon

    The Constitution simply doesn’t address adultery. However, historically the authors of the constitution would have condemned anyone caught in adultery, or suspected of adultery. The judge is “imposing” his own morality and views on the Constitution. The judge is too biased and so he is dangerous.

  • Jack

    Under the state, marriage is a contract. So, on the surface of it, this is a civil matter. However, if one enters a contract with the intent to defraud the other party to the contract, then it is also criminal matter.

  • DJT Supporter

    Any employers caught an employee having an affair with other employee during working hours. They should be dismissed from their jobs. Adultery has nothing to do with US Constitution. Of course all are equal but they cannot pervert US Constitution over adultery or any offside issues. Offside issues create a lot of problems, heartaches, malice and prejudices. Farside issues will never solve problems. A married couples had done affair outside their marriage should seek a marriage counselor immediately. Employer may provide a marriage counselor unless they change their outcomes of committing adultery. Divorce will hurt the family especially children.

  • John

    I know it’s against the. UCMJ ( unified code of military justice) and seems to be s violation of a lawful contract. If nothing else the CONSTITUTION may be silent for n this, but definitely needs t FOR, in that case it’s a state issue , like All rules regarding marriage SHOULD be under the RESERVE CLAUSE founded in The 10th Amendmentt.

  • Dwimby

    From the sickest court in the land, more BS.

  • Doug

    As usual, the 9th Circuit is on the side of perversion. The 9th must have a unique copy of the Constitution. Mine does not have a “Right to Adultery without consequence, Right to immigrate to the U.S. no matter who or what you are, nor a Right to Abortion on demand paid for by someone else.” The 9th Circuit is a rogue court that needs to be eliminated via splitting it up. Further, the Justice Department needs to get control of and fire Federal Judges that rule on their Agenda while snubbing the Law. If they don’t, Congressional Oversight needs to start holding the Justice Department accountable and force impeachment of Judges that make Law based on their Agenda and those in Justice that refuse to do their job and fire Judges that rule outside the Law.

    • rocky63

      Doug, you’re completely right. They are a group of fools and baboons, with no concept of what constitutes sensible and reasonably moral living. They can be counted on to be against the decent person and in favor of the sleazy ones.

  • Calling It Like It Is

    Wanna bet Pete Strozk and Lisa Page find a comfy love nest sanctuary somewhere in Kalifornika?

  • old_salty_dawg99

    While they are right about these twos private life is private but given their jobs require HONESTY and having an affair while married means they cannot be trusted which means their not right for their jobs.