Gay Marriage and Spousal Privilege August 14, 2013Posted by Sobek in Law.
An interesting little story from Ace yesterday.
A man named George Murphy allegedly sexually assaulted Bobbie Jo Clary with a hammer. Clary then allegedly took the hammer from Murphy and beat him to death with it, then stole Murphy’s van (I don’t know why the theft is even part of this story, all things considered, but whatever). Clary also allegedly told her partner, Geneva Case, what she had done.
Clary is now on trial for murder in Kentucky. Prosecutors want to compel Case to testify against Clary. Case says no way, we’re practically married – they had gone to Vermont in 2004 to get a civil union – and married people get a privilege against testifying against one another, but Kentucky (gasp!) doesn’t recognize civil unions. Therefore, argue the prosecutors, there is no spousal privilege for the lesbian couple, and Case can be compelled to testify.
The reason for the spousal privilege is that lawyers and judges figured that whatever benefit there might be to the fact-gathering function of the court, it was outweighed by the need to keep government from jeopardizing the marriage relationship. But as the saying goes, where the reason for the rule ends, there ends the rule. So if you don’t have that protected kind of marriage relationship, you don’t have a privilege. I worked a case where opposing counsel, stupidly, had what should have been a privileged conversation with his client in the presence of her (the client’s) ex-husband. No spousal privilege, so no attorney-client privilege (as it turned out, we didn’t press the point, but it was dumb of the lawyer to open himself up like that).
Does the reason for the rule extend to cover a lesbian civil union? Obviously it’s true that compelling testimony will create tension in the relationship (as argued by Clary’s attorney). But the same is true of a boyfriend-girlfriend relationship, or a roommate relationship, or an employer-employee relationship. Keep in mind that the spousal privilege doesn’t depend on whether the spouses actually like one another; the soon-to-be-ex-wife may have less to lose than the soon-to-be-ex-employee. It’s marriage, not the presence or lack of tension in the relationship, that is the first and last word in the privilege.
So Clary and Case can argue that Kentucky must recognize their Vermont civil union as the functional equivalent of marriage, especially as it was the most they could have gotten out of Vermont in 2004. But Vermont allowed full marriage in 2010, and Clary and Case don’t seem to have availed themselves of that institution. Did they have to in order to get the privilege?
Again, Kentucky does not recognize homosexual relationships at all, let alone full marriage. Case can point to the Full Faith and Credit clause of the U.S. Constitution and argue that Kentucky must recognize the valid legal acts of Vermont, including the conclusion of homosexual civil unions. My response to that, is that Kentucky amended its constitution to define marriage as between one man and one woman in 2004 – doesn’t Vermont have to give full faith and credit to Kentucky’s actions? If we’re locked in a battle between giving credit to the actions of one state over another, why should Kentucky yield rather than Vermont?
Of course, Case’s argument isn’t so much about Full Faith and Credit as it is about Equal Protection under the Fourteenth Amendment. Because the Kentucky law provides a benefit to heterosexual spouses, it cannot refuse that benefit to homosexual couples. I’d point out that such an argument is clearly not within the plain language or the original intent of the Fourteenth Amendment, but to do so I’d have to pretend that judges care about either thing, and obviously that’s not the case.
Rather than provide a clear yes or no answer to whether the privilege does or should apply in this case, let me ask a slightly different question: if Murphy sexually assaulted Clary with a hammer and Clary then beat Murphy to death with it, why is Clary on trial in the first place?