Two Kentucky women in a civil union have been denied their spousal privilege to avoid testifying against one another.
A Kentucky judge has claimed same-sex couples in the state are not protected under legal spousal privilege laws, expanding the confusion surrounding the spousal privilege legal debates throughout the U.S.
The debate emerged in Kentucky, where two women engaged in a civil union have been denied protection under the Spousal Privilege law, which creates protection for those called on to testify against a spouse.
The judge’s ruling will now mandate that one woman involved in the same-sex civil union will be mandated to testify against her significant other. The couple is now claiming they are facing discrimination due to their sexual orientation, and as a result are experiencing a violation of their constitutional rights to equal protection under the law.
The case surrounds Geneva Case, a 49-year-old woman and her 37-year-old civil union partner Bobbie Joe Clary, who entered into the union in Vermont in 2004. Clary is facing murder charges following the death of George Murphy, a 64-year-old man who was beaten to death.
According to Reuters, Clary is accused of killing Murphy with a hammer, after which she allegedly stole his van.
Clary has maintained a self defense argument, claiming Murphy attempted to sexually assault her with the use of the hammer, identified as the murder weapon. The death, she said, occurred while she attempted to break away from her alleged assailant.
The two women at the center of the case are not married, as Kentucky does not allow or recognize same-sex marriage. They did, however, enter into a civil union in Vermont in 2004, before same-sex marriage was legalized.
This creates more than a legal debate in a murder case, and instead draws to light a lack of legal protections for same-sex couples living in states where they are not legally recognized.
According to Europe’s Pink News, Judge Susan Schultz Gibson issued her ruling this week, claiming, because same-sex marriage is not legally recognized in the state, neither party can claim privilege.
She issued the statement while acknowledging the “legal, social and moral landscape against which this issue is playing out is rapidly changing and progressing.” Fourteen states in the U.S. have already voted to recognize same-sex marriage.
In June, the Supreme Court issued two major rulings in support of gay marriage, including one that that ruled same-sex couples were entitled to equal rights relating to spousal benefits. The other blocked California’s Defense of Marriage Act, opening the door for same-sex marriage in a state that has long been stuck in battle over the issue.
The denial of spousal privilege
The prosecution is attempting to order Case to testify against her spouse Clary, as she has in the past claimed Case admitted to killing Murphy and was witness to blood that appeared in Murphy’s van after his death.
With the death penalty for Clary on the line, the defense team argued that Case should be protected from testifying against her spouse, citing spousal privilege.
The defense team attempted to block the subpoena, claiming the couple was protected from testifying against each another under the spousal privilege, which goes into effect after a couple’s marriage.
“If they were a heterosexual married couple, there would be no question that Kentucky would acknowledge the privilege and not even have issued the subpoena,” Bryan Gatewood, Case’s attorney, told The Guardian.
In legal terms, the couple is not married. This is where the issue of same-sex rights comes into play, as Kentucky does not allow or recognize gay marriage. The argument on the side of Case and Cary states that the only reason they aren’t married is because of the law.
While Kentucky does recognize common-law marriages among those who have lived together for a certain period of time, including same-sex couples, it does not recognize marriages from any other state — or civil unions, as in this case.
The judge also recognized in her ruling that while Vermont did legalize same-sex marriage in 2009, the couple in question did not seek a marriage license.
“They will do it in that circumstance, but they are saying they will not do it for a gay couple no matter what — even if you’re a gay couple married in Iowa or Minnesota — your marriage means nothing to the state of Kentucky. That’s the crux of the commonwealth’s position,” Gatewood said.
Another set of protections related to same-sex argument
“Spousal privilege is one part of the tremendous bundle of protections for a committed couple that come automatically with marriage,” Susan Sommer, a lawyer with gay rights association Lambda Legal, told Reuters.
Same-sex marriage is now legal in 14 states, with Hawaii most recently joining the ranks this month, representing the somewhat rapid progression for gay rights in the U.S. within the last decade. The proposal didn’t pass the Senate, coming 12 votes short.
Just nine years ago, the nation faced the actions of President George W. Bush, who supported a federal ban and constitutional ban on same-sex marriage.
“The union of a man and a woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith,” he said, according to CNN. “Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.”
During that same year, the first same-sex marriage in the U.S. was recognized in Massachusetts. It was also the same year 11 states passed constitutional amendments declaring marriage as between one man and one woman, according to a CNN timeline.
Kentucky, the state handling the recent case regarding same-sex inclusion in the spousal privilege law, was one of those states to pass a constitutional amendment defining marriage as between one man and one woman.
Fast-forward to 2013 and the national landscape has begun to shift, rather drastically. A 2013 Gallup poll indicated a majority of Americans supported same-sex marriage members, with 52 percent of Americans in favor, compared with 43 percent against it. That’s shifted even from a few years ago — in 2004, only 31 percent of Americans favored same-sex marriage, according to a Pew Research poll. By 2008, it had increased to 39 percent.
When the Supreme Court issued its decisions this year regarding same-sex marriage rights relating to federal benefits and California’s Defense of Marriage Act, it was seen among the gay rights community as a major victory. Not only did it follow a wave of state same-sex marriage approval, but it opened the door for equality in terms of federal spousal benefits.