George Conger at Get Religion is in something of a snit. As he explains
The New York Times story is a European-style advocacy piece. Though it appears on page A12 in the news section, it rightly belongs on the opinion pages as it is more of a lecture than reporting. I know what the Times‘ thinks about adultery after reading this article, but I did not learn much about adultery.
As Conger goes on, it is clear he sees the article as a lightly veiled attempt to make adultery more acceptable — part of the sexual agenda of East coast elites like those at the New York Times.
I evidently do not have the decoder ring that he does. Whether this article is to be considered advocacy turns in part on whether one reads it as a limited exploration of the status of adultery in the criminal code, or as a broader discussion of adultery’s status in culture, a moral argument.This latter position however is not supported by the article in question.
The outrage that apparently is generated by a comment from Universit of Washington professor Peter Nicolau on adultery “adulterating” male perogatives. However such controversy gets settled in the subsequent graf, where Ethan Bronner turns to Boston University professor Linda McClain, who provides an 1838 case using precisely the language of adulteration, and then contrasts it with a 1992 case reflecting the current relational understanding of adultery.
The difficulty for Conger lies in the practice of journalism itself. Were one interested in the status of adultery in U.S. law, wouldn’t one consult precisely the sorts of experts cited in the article (e.g. in 2010 Professor Melissa Murray was recognized as one of the top junior faculty in the country)? Even the kick at the end, that “nobody is going to say that adultery is OK,” reinforces the frame of the article, that it is about the legal status of adultery, and not its morality.
It is difficult given the nature of the quotes, to believe the piece was in fact engaged in advocacy unless one holds that the mere consideration of a topic constitutes its advocacy. What is at stake is the cultural frame around marriage where the law both provides direct penalties but more broadly also expresses cultural values. The loss of those common values — the weakening of the older cultural and religious norms — is real, something Murray notes in the article, citing how Lawrence v. Texas weakens the status of adultery as a prosecutable crime, even as adultery on the lawbooks continues to have a continuing utility in divorce proceedings.
Obviously, I do not have the decoder ring, but from my reading the article presented a rather limited inquiry into the status of adultery in American legal code. I can not see how this rises to the level of advocacy, let alone meriting the sort of indignant hrummphing it received.