Geneva Case and Bobbie Jo Clary, a lesbian couple in Kentucky, are seeking to invoke spousal immunity to shield Case from testifying against Clary in Clary’s criminal murder trial. Clary has been charged with beating a man to death and then stealing his van.
Case and Clary were joined in a civil union in Vermont in 2004, five years prior to Vermont legalizing same sex marriage. Under Vermont law, civil unions into which couples entered prior to September 1, 2009, remain civil unions.
Kentucky, like most states, has a statute that allows a person to refrain from testifying against his or her spouse. However, in 2004, Kentucky amended its State Constitution to define marriage as being a union only between a man and a woman. Under Kentucky law, the union between Case and Clary cannot be marriage and the state has issued a subpoena to compel Case’s testimony in Clary’s criminal trial. Clary could face the death penalty if convicted.
If Case and Clary were a man and a woman, there would be no question but that the state would be precluded from enforcing a subpoena to compel Case to testify as common law spouses. (Kentucky is one of the few states that recognizes common law marriage.) Case’s attorney has filed a motion to quash the subpoena based on the argument that the U.S. Constitution’s Full Faith and Credit Clause, which stands for the proposition that states must respect the “public acts, records, and judicial proceedings of every other state.” Clary claims that it is a violation of equal protection for Kentucky to fail to recognize her Vermont union as a marriage for the purposes of invoking spousal immunity for Case. Civil unions, are not recognized in Kentucky.
Spousal immunity is just one of a host of privileges afforded to married couples that are denied to unmarried couples. In addition to spousal immunity, same-sex marriage can provide gay couples tax benefits, government services and legal protections such as inheritance and hospital visitation rights, among others. Thirteen states now permit same-sex marriage, and the U.S. Supreme Court struck down the portion of the Defense of Marriage Act that limited the federal definition of marriage to a man and a woman in June, which may impact the ways which such standards are assessed by the courts. Case’s attorneys are hopeful that the Kentucky amendment prohibiting same sex marriage might also be found unconstitutional.
Clary’s trial is set for August 30th. Jefferson County Judge Susan Schultz Gibson is expected to rule on the spousal privilege issue later this month.