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
(comment from another thread)
It would be so much better if the privileges of same sex unions were defined independently from marriage which traditionally came into use only in reference to opposite sex unions.
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this ruling shows why same sex couples want marriage and not some separate and (not entirely) equal same sex union.
Tony C,
I suspect that, while the prosecutor and/or the judge might need to carefully parse any grant of immunity, ultimately the dodge you are suggesting wouldn’t work, but I’m not a lawyerly type either… There’s also the issue of whether any immunization protects you from prosecution or just bars your testimony from being used to prosecute you and I don’t really have any idea what sort of dealmaking discretion a prosecutor has (unless Law & Order was correct… 😉 ). Maybe someone who knows something about the law could weigh in… *wink* *wink* *nudge* *nudge*, “know what I mean?”
Blouise,
I think Gene makes a fine shoulder angel—I have a simple rule: I do something and if Gene kicks me in the head, I do something else. What could be easier than that?
Mike A.,
Welcome to the end of the Second Millenium—I’m sure you’ll get to the third before too long… 😛
Muahahahaha *cough* um er *adjusts tie* . . . woof.
Mike A.,
There ya go … with Guardian Angels like Gene and OS, I fear for your ascension 😈
It is the dawn of a new age. Lo, ye mighty! Look upon Mike’s emoticons and
despairrejoice!Gene H. and OS:
Thanks for the information. I think I have now reached approximately 1998 technologically. 😀
Mike A,
Check out the page at the link below, and leave off the quotes.
http://codex.wordpress.org/Using_Smilies
It’s the quotation marks gettin’ you, Mike.
😀
I give up.
Nope. Try again. “:D”
Blouise:
I think I have finally figured out how to add an emoticon. Let’s see if it works.
“:grin:”
” … as far as I can tell, none of them was imbued with divine significance.” (Mike A)
Humbleness is a saintly virtue. 😉
Very good comments on this very interesting dilemma. Here are my two cents:
1. The decision was correct and can be upheld on appeal without regard to the Full Faith and Credit Clause.
2. Had this couple been legally married in Vermont, the result would be different. Any effort by Kentucky to deny recognition of the Vermont marriage on the grounds of Kentucky public policy would run afoul of the Fourteenth Amendment.
3. I have previously argued that all marriages are nothing more than civil unions. The civil union laws were adopted because religious groups have successfully convinced lawmakers that the word “marriage” describes a relationship that precedes positive law and may not be legislatively altered. This is nonsense, of course. I have performed a number of marriages as a notary public, and as far as I can tell, none of them was imbued with divine significance.
Slart: Can local (state level) prosecutors unilaterally immunize one against prosecution for federal crimes? Can they, for example, keep the IRS from auditing you, can they keep you off the no-flight list?
If they cannot immunize me against the actions of the federal government, and I do not have to tell them why I am pleading the fifth, and they do not already know what I know, then they cannot claim I am not incriminating myself by testifying.
I think I could also refuse on principle; that I do not wish to repeat something “as a confession” that I believe may have been said with sarcasm, or as a joke.
As always, for other readers, I am not a lawyer, but I do not see how they can guarantee Geneva Case immunity from ALL kinds of prosecution or investigation.
If my memory serves me correctly, Civil Unions fell under that “Separate but Equal” fallacy. At the time, there was such brouhaha and wailing about the word marriage, and all the horrendous developments and grand catastrophe that would occur should the legislature use that sacrosanct term. So, “Civil Union” was a compromise to get the legislation passed.
http://www.pulitzer.org/archives/6432
Obviously, the sky did not fall, and some really great people were able to make their commitment to each other legal, and reap some of the benefits granted to those who were “married”. Vermont has since removed “Civil Unions” from the lexicon. Now any two people who want to legally commit to each other may do so. (And be just a miserable as the rest of us. Ha! Sorry… it is so Me to toss in a snark moment. Can‘t resist.)
This case does highlight why the civil union cop out is not the answer. I have to agree with Prof. Turley and Gene that this case might not provide the proper fact situation to properly test the Full Faith and Credit argument.
Quote from decision included in main article:
“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.”
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That’s the definitive argument when people argue that civil unions for gays are just as god as marriage. No it isn’t and this kind of dispute is on a fast track to the SCOTUS to settle the question once and for all. If Congress and the President had any respect for civil rights they would put an end to this kind of question with a legal declaration of universal civil rights for gays. As it stands the worst SCOTUS in a century is going to end up making the law on this and there’s no guarantee it going to be good law.
Gene’s quote sounds about right to me:
“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. …”
If you look at it that way it appears that there is an overriding interstate commerce interest in the matter also; that interest is broad and deep and marriage affects many economic concerns such as, at one time it was easier for married couples to get home loans than non-married couples or single purchasers.
Jude, I don’t do much criminal work, but I would guess that the answer is, not unless it was preserved for appeal. IOW, not unless the privilege was invoked or not otherwise waived at the trial level. I am sure our fine legal scholars will correct me if I got it wrong.
And my guess is it wasn’t invoked for the reason Slart mentioned.
Quick question: If this ends in a conviction and they appeal, can they take it to the Federal level and then cite the fifth?