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
Tony,
I would think that, if Case pled the 5th, prosecutors could immunize her against prosecution for anything she said at which point she would lose her grounds for refusing to talk.
I guess this shows the fallout of the civil union strategy that was played in elections years ago. At the time it seemed to be a way that would allow people who were on the fence on the issue to vote to allow civil unions when they couldn’t handle the notion of gay marriage. Now events such as this are showing the fractures in that thinking.
I wonder what the court would have done in the case of a couple who lived together and share resources for 15 years and in their state were considered common law married, but went to another state that does have common law marriage and these spousal immunities were claimed.
I guess I don’t understand why Case cannot plead the Fifth Amendment, I am not aware of any requirement to explain why one is pleading the Fifth (since that explanation might itself be incriminating).
“Civil unions and marriage are not the same, were never intended to be.”
If that’s what you want to think, Monte.
But if you try to tell a family law judge that someone married by a JOP in a civil union isn’t really married, they’re going to find it really funny while concurrently being unamused. Just because local law treats a totally domestic scenario differently than a foreign jurisdiction isn’t a valid reason to totally disregard that foreign jurisdiction either.
As for the polygamy issue? That’s an area JT and I disagree on. It’s hardly a secret. Although personally I’ve always thought it was a bad idea, I used to be on the “for it” side (based in contract and freedom of association) until I read some studies provided by other posters here about the psychological and social costs of polygamy. I think the specific harm the practice causes far outweighs the argument that forbidding it isn’t a reasonable restriction on religious practice, but I will fight for your right to believe it’s what God wants from you even if I don’t think it should be allowed put it into practice.
_________________
Blouise,
Without knowing the specifics of what VT law allows related to medical decisions and the conversion from CU to marriage, simply a case where a VT same sex couple where one was denied the right to speak to a medical decision for an incapacited spouse while living in KY would probably go to the point.
Civil unions and marriage are not the same, were never intended to be.
In WA state there is domestic partnership [civil union]. The clear distinction is that those in the DP are not subject to the federal marriage tax scheme so there is no ‘across state line’ recognition issue.
The least intrusive means for the State to afford its citizens protections and immunities within the boarders of its State is that the FF&CC is a “May” and not a “Shall”
Can easily find other conditions where the states [10th] general health and welfare policy trumps the FF&CC. New York is under court order, required to recognise the marriages of other countries, yet New York picks and chooses what marriage laws it will acknowledge.
CO and Canada allows in some cases uncle/niece marriages – – shall all 50 recognise them.
As JT argues for the decriminalization of Polygamy in Utah, once that is accomplished, by the FF&CC is that act to become nationwide -?
Laws are never perfect, each state has their own view – – it is up to the, in this case ‘pair’ to know the laws of the state they live in or plan to move to – – never assume that what one state allows all others do also.
The least intrusive is for each state to determine their own internal workings regarding marriage.
The issue with same gender marriage is compounded by the simple unanswered matter.
The sisters raising the child together are as equal under the constitution as any other same gender pair raising a child together – – yet they are denied even the state protections only available under marriage, even if called civil unions or domestic partnerships . .
the !0th – States General Health and Welfare Policy
Gene,
So how, do you think, would this Vermont “conversion” language have impacted on this couple in Kentucky if the issue was medical or successions? Can you construct a hypothetical that would be an acceptable vehicle to test the Kentucky/Vermont laws?
And they aren’t necessarily under that scenario, Monte. KY doesn’t recognize any form of same sex union and yet they are recognizing the civil union, are they not? And is not their saying spousal immunity does not apply because KY does not extend that priviledge to civil unions indeed depend on recognizing the underlying basic out of state legal relationship created in VT and their “conversion” constraint?
It’s not so simple an issue and, as JT said, not presented in the ideal context for the underlying Constitutional issue. Because of the speciic facts of this particular case, I too agree that the ruling here is likely to be upheld, but it also isn’t going to address the fundamental recognition of out of state same sex marriages either.
“If VT had gone with marriage straight out of the box? This would be an entirely different story.”
Not at all unless you are proposing that a single state can commandeer for its own ends the legislature of all other States.
Already know from DOMA that the federal government cannot do that, neither can any single State.
By the least intrusive means – – Each State has the authority to decide for it self – – The State may recognise the acts of their sister states, no State is compelled to do so . . .
Which in this case hinges upon the Vermont “conversion” language. If VT had gone with marriage straight out of the box? This would be an entirely different story.
The protection of the States public policy is a valid reason for the State’s refusal to credit the judgement of another state, lest other states be able to dictate the public policy of other states.
“Full Faith and Credit does not . . . enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it.”
“In that struggle, a murder trial is hardly the ideal context for a definitive challenge.”
Agreed. I think the real meat and potatoes of the issue are in the context of medical decisions and successions.
I think the argument about spousal immunity is sideshow. The underlying Constitutional issue is more substantive than that one policy issue. The valid state interests in marriage are contractual. A license for marriage isn’t like a professional license or even a driver’s license. It’s a recordation with the state of a voluntary legal entry into contract so that upon dissolution or death certain legal rights, duties and obligations are recogized as being valid and assertable. Just because KY doesn’t recognize a VT civil union as a marriage doesn’t mean ipso facto that denial of rights should be made on KY law. The proper thing to have done would be to recognize VT laws as controlling. If VT recognizes spousal immunity in civil unions, that should be the end of the story. This wouldn’t be an issue if some people weren’t insisting that marriage be defined by religous tradition instead of recognized valid state interests in marriage (which are all contractual). Why? Because that’s how the conflict of laws operates and why choice of venue clauses are legal. The FF&C is pretty straight forward:
“Article IV, Section 1:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
If you undermine that for political reasons, you bring into question the validity of all manner of interstate transactions, from contracting to driver’s licenses to reciprocity on professional licensing. In the end, it’s a Federalism and a state’s rights issue that will be resolved by the Supremacy Clause and the FF&C Clause against the states.
Wheter or not spousal immunity is a wise policy decision or not is truly a separate discussion.
I’ve known Judge Gibson for many years and she is one of the finer judges in our judicial circuit. The part of her opinion you cite is clear and well-reasoned. Literally, the privilege is the “marital” or “spousal privilege.” It isn’t the “civil union privilege.”
I’ve argued for years that all marriages in the United States are in fact civil unions, because, even if my partner and I go to the Cathedral of the Assumption (in Louisville) and are wed by the Archbishop himself, if we do not have a marriage license duly issued by the state, we are not married. The civil sanction represented by the marriage license results in a de jure civil union.
I’d be interested to know if other states have denied the spousal privilege to other members of Vermont’s civil unions.
Mike,
I think that redefining FF&C is more problematic than it appear although I will agree that the hard right Gang of Five has a couple of members that will no doubt do some astounding gymnastics to justify exactly that. However, if you you redefine the understanding of FF&C along political lines, you would basically gut the whole thing and run afoul of the 14th again. It’ll be interesting to see how it shakes out, sure, but I think in the end, the FF&C arguments will win in favor of same sex marriages.
Darrel,
Preservation of the family unit… Is the goal…. I imagine that it came about because some rich person did something illegal and wanted his spouse to be prohibited from telling what happened…. Sometimes legal fictions make bad precedent….
“How about this is a solution: repeal spousal immunity.”
Dan,
An interesting proposal which I’ll have to think about. My first reaction is that when one is married there is a certain expectation of confidentiality that one expects of their partner that is similar to the lawyer/client privilege. My wife knows ALL of my secrets because she is my wife and my best friend. For her to reveal them to strangers would seem to me to be a grievous breech of trust.
That said, I need to ponder this more because I can also see some points for your proposal.
As for this case I do think that the country is heading towards some new SCOTUS interpretation, at some point, as to the legal meaning of “full faith and credit”, because the political divide has become so wide.
DAN – GO TO THE HEAD OF THE CLASS!!!
Anytime the truth is not allowed to be available to the Jury, Justice is being corrupted by the Criminal element I call “The courthouse gang” – who’s obvious M. O. is to by ANY tricks and treachery, get the guilty off.
“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.”
Interesting issue, but I highly doubt that spousal immunity for same-sex couples will create any new front in the gay and lesbian fight for equal rights. I don’t think the issue comes up enough, and as the prof pointed out, when it does, it usually is not public relations friendly. MHO.
What about Privileges and Immunity Clauses of the 4th and 14th amendment….
If you can file an out of state judgment in a foreign jurisdiction for enforcement…. Why can’t this contract be enforced…. As any other contract….
How about this is a solution: repeal spousal immunity.
There seems to be no justification for it, and the concept itself seems irrational. It dates from a time, does it not, when a wife’s legal rights actually resided with her husband?
If the spouse is involved in the crime they can claim 5th amendment rights. Otherwise their testimony is the same as anyone else.