In a ruling pursuant to lawsuits from two public interest groups in Washington, U.S. District Court Judge Henry H. Kennedy Jr. issued a temporary restraining order against the Bush White House today, ordering it to preserve backups of millions of emails the administration claims to have deleted:

Order is intended to provide “consequences” if back-Ups have been destroyed

Defendants shall preserve media, no matter how described, presently in their possession or under their custody or control, that were created with the intention of preserving data in the event of its inadvertent destruction,” wrote Kennedy in a Nov. 12 opinion in the U.S. District Court for the District of Columbia.

The lawsuits were brought separately by the National Security Archive, which is affiliated with George Washington University, and Citizens for Responsibility and Ethics in Washington (CREW), and have since been combined. The groups sued the White House after it claimed in April that 5 million emails that were generated between March 2003 and October 2005 were “missing.” Topics of intra-office communication during that period would likely have included Hurricane Katrina and the 2004 presidential campaign.

In reality, email can require quite a bit of effort to destroy. Copies of individual emails — even emails that users believe they have deleted — are saved on the hard drives of the sender, the recipient and often on the various servers in the relay. On the other hand, in the ensuing seven months since it announced that the emails were missing, Bush operatives have had time to wipe clean hundreds of back-up drives and servers.

This fact was apparently contemplated in Judge Kennedy’s ruling, in which he agreed with the recommendation of U.S. Magistrate Judge John M. Facciola last month that a restraining order should be issued. “Without such an order,” Facciola wrote, “destruction of the backup media would be without consequence.”

Last week the New Hampshire Supreme Court handed down a ruling in a divorce case that precluded the petitioner from amending the original grounds for divorce — that old chestnut irreconcilable differences — to adultery based on the fact that his wife had carried on an affair with a woman. But since no penis insertions could be performed between the women, it wasn’t adulterous behavior:

Craig’s wife can divorce him for being a reprehensible liar and hypocrite, but not for cheating on her with cute boys in airport restrooms.

The plain and ordinary meaning of adultery is “voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband.” Webster’s Third New International Dictionary 30 (unabridged ed. 1961). Although the definition does not specifically state that the “someone” with whom one commits adultery must be of the opposite gender, it does require sexual intercourse.

The plain and ordinary meaning of sexual intercourse is “sexual connection esp. between humans: COITUS, COPULATION.” Webster’s Third New International Dictionary 2082. Coitus is defined to require “insertion of the penis in the vagina[],” Webster’s Third New International Dictionary 441, which clearly can only take place between persons of the opposite gender.

The pesky petitioner even tried to turn the tables on the whole gay rights deal by arguing unequal treatment under the law, but the court was having none of that:

We reject the petitioner’s argument that an interpretation of adultery that excludes homosexual conduct subjects homosexuals and heterosexuals to unequal treatment, “contrary to New Hampshire’s public policy of equality and prohibition of discrimination based on sex and sexual orientation.” Homosexuals and heterosexuals engaging in the same acts are treated the same because our interpretation of the term “adultery” excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that persons of the same gender cannot, by definition, engage in the one act that constitutes adultery under the statute.

So what does this mean for wide-stance conservatives like Larry Craig? It means his wife can divorce him for being a reprehensible liar and hypocrite (probably under the catch-all “irreconcilable differences,” which could also mean that she is unable to reconcile his gayness with her heterosexuality), but not for cheating on her with cute boys in airport restrooms.

And that, it would seem, could present a significant hurdle to allowing gay marriage — if gays get married, they could not file for divorce on the grounds of adultery because gay sex is, by definition, not adulterous behavior. Unless, say, a gay guy left his gay spouse for a woman, or a lesbian left her spouse to take up with a man, but again, those scenarios could easily be filed under “irreconcilable differences.”