JONATHAN TURLEY: Former Sen Kyrsten Sinema fights affair lawsuit invoking centuries-old marriage tort

Former Sen.

Kyrsten Sinema is continuing to challenge the lawsuit brought by the wife of her former security guard and lover, Matthew Ammel.

Sinema has admitted to having an affair with Ammel while she was the Democratic senator from Arizona.

Heather Ammel’s lawsuit alleges the tort of alienation of affection, an action many may find outdated in our more open or indulgent culture.

I start teaching my torts class this week, and the alienation tort remains a controversy at the intersection of tort and constitutional law.

There was a time when most states had morality crimes that punished adultery or homosexuality.

They have been largely scrubbed from our books due to constitutional challenges and changing social mores.

However, a spouse can still sue civilly over a third party ruining a marriage through adultery.

Such "heart balm" actions go back to the earliest days of tort liability.

However, the tort has been abolished in 42 states, leaving Hawaii, North Carolina , Mississippi, New Mexico, South Dakota and Utah as the exceptions.

COURT FILINGS REVEAL KYRSTEN SINEMA HAD SEX MULTIPLE TIMES WITH MARRIED BODYGUARD WHILE SERVING AS SENATOR Early tort cases spoke of two violative acts : enticement and seduction.

The tort of enticement "involved assisting or inducing a wife to leave her husband by means of fraud, violence, or persuasion." Seduction was more straightforward and only required "an adulterous relationship between the plaintiff’s spouse and the defendant." Critics have long charged that this tort is based on early concepts of the wife being the property of the husband and that there are lingering constitutional questions over holding individuals liable for consensual sexual relationships.

That proprietary element echoes in some of the earliest English cases, such as Winsmore v.

Greenback in 1745.