In torts, I often discuss the collateral consequences for same-sex couples not having recognized marriages from intentional infliction of emotional distress claims (which are limited to close family members in seeking third-party claims) to spousal immunity claims. Kentucky last week demonstrated the problem for such couples with the opinion below. Bobbie Jo Clary (left) and her domestic partner, Geneva Case, claimed spousal immunity on the basis for a civil union in Vermont in 2004. However, Judge Susan Schultz Gibson ruled that they could not claim spousal immunity in a criminal case because they do not have a marriage recognized under Kentucky law. It is an example of the type of “full faith and credit” cases that could lead to a showdown before the Supreme Court. Normally, states are required to give full faith and credit to the contracts from other states, including out-of-town marriages.
Complicating this case is that the couple had only a civil union rather than an actual marriage. In the murder trial of Defendant Bobbie Jo Clary, the women claimed the right to be immune from testimony but the prosecutors opposed the claim. Clary is charged with the murder and robbery of George Murphy in 2011. Clary reportedly confessed to Case (shown right) that she beat Murphy to death with a hammer but said that she was defending herself from a rape.
Gibson found that the civil union had not been converted into a marriage and thus did not meet the threshold requirement of a privilege assertion:
“At a minimum, the privilege granted by the Commonwealth of Kentucky would require that the parties be actually married. Ms. Case and the Defendant are not, under the law of either Kentucky or Vermont. The fact that Vermont may extend the marital privilege to couples who have entered into a civil union does not require Kentucky to do so.”
Since the couple went to Vermont for a civil union and did not covert the relationship to a marriage, the ruling is likely to stand on appeal. In 2009, a marriage option was added to Vermont law. Because privileges are narrowly construed under state law, the judge felt obligated to deny the claim in this case.
However, the final line of the decision is the most interesting. Vermont appears to extend the protection to civil unions, but the court states that no state is required to adopt the statutes of other state when it conflicts with its own laws. It is not clear if that is a reference to the use of civil unions as the basis for testimonial privilege (which is the most direct interpretation) or more broadly the recognition of a marriage status for the same-sex couple (which has broader full faith and credit implications). The Court states that “at a minimum” the couple must have a marriage license to claim such a privilege.
I would expect the ruling to be upheld based on the narrow rationale of the difference between a civil union and a marriage under Kentucky law. However, this type of conflict is likely to create a new front in ongoing effort to establish protections for same-sex couples. In that struggle, a murder trial is hardly the ideal context for a definitive challenge. Accordingly, same-sex marriage advocates may prefer to see this case decided on the basis of the narrow interpretation of state law.
Here is the opinion: bobbijo