Law School Hypothetical? Or Real Life? Same-Sex Spousal Immunity in Kentucky?

Prosecutors in Jefferson County, Kentucky, have charged Bobbie Joe Clary with the murder of George Murphy on October 29, 2011.  Clary is arguing self-defense, claiming that Murphy was raping her when she fought back and hit him in the head with a hammer, causing his death. 

Clary previously entered into a civil union with Geneva Case in Vermont in 2004.  In 2009, Vermont enacted a marriage equality law, under which all previously contracted civil unions would, if not dissolved, be translated into marriages for purposes of Vermont law.  Although Clary and Case are separated, they have never formally dissolved their civil union or divorced. 

Prosecutors claim that Clary told Case about killing Murphy, and that Case saw Clary clean blood out of Murphy’s van and abandon it in Southern Indiana, according to a June 17 article in the online news source, Legal Monitor Worldwide (2013 WLNR 14771121).  The prosecutors want to call Case as a witness in the murder trial.  Clary objects, raising a claim of spousal immunity. 

Kentucky has a state constitutional amendment banning recognition of same-sex marriages.  At a June 6 hearing, Jefferson Circuit Court Judge Susan Schultz Gibson indicated that the question of spousal immunity in this context of an out-of-state same-sex marriage was a matter of first impression in Kentucky, and she scheduled another hearing for July 30 to hear arguments from all parties on whether Case can be compelled to testify against Clary. 

The Kentucky constitutional amendment would seem to weigh against extending comity to recognize the Vermont same-sex civil union (now marriage), but the Full Faith and Credit Clause of the federal constitution would take priority if it applies.  Does it apply?  Does Section 2 of the federal Defense of Marriage Act effectively relieve Kentucky of any constitutional obligation to recognize the marriage for this purpose?  (Is Section 2 constitutional?  The currently pending DOMA case in the Supreme Court, U.S. v. Windsor, concerns only Section 3, not Section 2, so will not answer this question.) 

Judge Gibson has her work cut out for her in deciding this motion.

This would make a great law school hypothetical, wouldn’t it?

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