Kentucky Court Rules Against Marital Evidentiary Privilege for Vermont Civil Union Partners

A Kentucky judge denied a motion by a lesbian murder defendant to invoke the spousal privilege to present her Vermont civil union partner from testifying at the trial.  Ruling on September 23, Jefferson Circuit Judge Susan Schultz Gibson held that because a Vermont civil union is not a marriage, Kentucky’s marital testimonial privilege does not apply.

Bobbie Jo Clary and Geneva Case were united in a civil union in Vermont in 2004, and later came to Kentucky.  Clary is now on trial for the October 29, 2011, murder of George Murphy.  The Prosecutor claims that shortly after the murder, Clary phoned Case to pick her up, told Case what she had done, and enlisted Case to obtain cleaning materials to remove blood stains from Clary’s van.  The Prosecutor wants to call Case as a witness at the trial.

Under Kentucky ‘s evidence rules, “The spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage.  A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage.”  The rule also provides, consistent with Kentucky law, that marriage “refers only to the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.”  The state also forbids same-sex couples from marrying and refuses to recognize same-sex marriages contracted elsewhere.  The voters ratified a constitutional amendment to this effect in 2004.

Clary and Case have never dissolved their Vermont civil union.  Under Vermont law, civil union partners are entitled to invoke the spousal testimonial privilege.  In 2009, the Vermont legislature adopted a marriage equality law, which provided that civil union partners could convert their relationship to a marriage by obtaining a marriage license, but that civil unions would not be automatically converted to marriages.  At the time Murphy was murdered, Clary and Case were not living together.

Clary and Case argued that because their Vermont civil union gave them the same rights associated with marriage, there was essentially no distinction between a Vermont civil union and a Vermont marriage, and that Kentucky’s failure to recognize their spousal status would violate the United States and Kentucky constitutions, constituting a violation of their right to marry “on an arbitrary basis – the couples gender or sexual orientation.”  They invoked the Full Faith and Credit Clause of the U.S. Constitution as well as the equal protection requirements of both constitutions.  They also relied on the Supreme Court’s recent decisions in U.S. v. Windsor (DOMA) and Hollingsworth v. Perry (California Proposition 8), arguing that “it follows from these decisions that it is unconstitutional to create a system where a same-sex marriage is legal in the state where consummated, recognized by the federal government, but not recognized by the state in which the same-sex couple resides.”

Judge Gibson rejected these arguments.  “It is abundantly clear that under black-letter Kentucky law, same-sex marriages or their equivalent cannot be performed in this state, and if solemnized outside this state in a jurisdiction which permits them, will not be recognized as valid marriages or unions with this state,” she wrote.  “It is also abundantly clear, as pointed out in both briefs on behalf of movants, that the legal, social and moral landscape against which this issue is playing out is rapidly changing and progressing, that acceptance of same-sex marriage is growing, and that an increasing number of citizens of this country and this state believe that extension of basic rights taken for granted by heterosexual couples to same-sex couples will not result in the destruction of civilization.”  But she said that it wasn’t the role of the court to judge the legislature’s policy decisions in the context of this case “because the arguments of the Defendant and Ms. Case fail not simply because they are not considered married in Kentucky, but because they are not considered married in Vermont.”

A Vermont civil union is not a marriage, Judge Gibson concluded.   Clary and Case did not apply for a Vermont marriage license to convert their civil union after the new law passed in 2009, and their civil union remained just that.  “Without application for a marriage license, and solemnization of the marriage, the Defendant and Ms. Case remain in a civil union recognized by the state of Vermont, but not recognized under Kentucky law.”

Furthermore, Gibson found that under Kentucky precedent, the marital privilege is narrowly construed, and some courts have found that it no longer applies “when the reason supporting the privilege, marital harmony, no longer exists.”  In this case, Clary and Case were no longer living together at the time of the murder.  Finally, wrote Gibson, “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.”

Consequently, Case can be compelled to testify and held in contempt if she refuses to do so.

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