Fornication–now more commonly referred to as premarital sex–is when two unmarried individuals engage in sexual intercourse. Traditionally, laws against fornication referred specifically to heterosexual couples, as separate laws governed homosexual relations. Further, some jurisdiction’s fornication laws hinged only on a woman’s marital status, with no consideration given to a man’s. In these jurisdictions, intercourse between a married man and an unmarried woman would be fornication whereas intercourse between a married woman and an unmarried man was adultery.
Today, fornication laws cannot be enforced due to the Supreme Court’s decision in Lawrence v. Texas (2003). The Court ruled that a person’s private sexual acts are protected by the Fourteenth Amendment’s Due Process Clause. Thus, government actors cannot intrude into and criminalize these personal actions. That being said, a few states still have fornication laws on the books. Since the laws cannot be enforced, they also cannot be challenged in court since a challenge requires actual harm, not just disagreement. As such, the laws will likely remain until legislators formally repeal them.
[Last updated in August of 2021 by the Wex Definitions Team]