The Court of Appeals of North Carolina today reversed a trial court ruling that these claims — usually made against the person that a spouse has an affair with — are not facially unconstitutional in North Carolina.  The case is Malecek v. Williams.  The opinion by Court of Appeals Judge Richard Dietz can be found here:  https://appellate.nccourts.org/opinions/?c=2&pdf=35242

The plaintiff, a Winston-Salem man, filed suit against a Wake Forest Baptist Health doctor who engaged in an extramarital affair with the man’s wife, a Wake Forest Baptist Health nurse.  The man alleged that the doctor was aware that the nurse was married, and that she was reluctant to engage in the affair.  Trial Judge L. Todd Burke ruled in 2016 that the claims, commonly know as heart balm torts, are unconstitutional because they violate individuals’ First and Fourteenth Amendment rights to engage in intimate sexual activity, speech, and expression with other consenting adults.  The Court of Appeals reversed, finding that the state has a legitimate interest in regulating the marital relationship that can outweigh an individuals rights , although the Court noted that its ruling was “neither an endorsement nor a critique of these “heart balm” torts.”  The Court noted that in some circumstances, such as a friend counseling someone to leave an abusive spouse, free speech rights might bar a claim for alienation of affection.

The lawsuit at issue has been sent back to the trial court for further proceedings, which may include discovery and trial, if necessary.   The defendant doctor may be subject to compensatory and punitive damages.