This month a Kentucky judge will decide whether Geneva Case must testify against her spouse Bobbie Jo Clary despite a Kentucky law that exempts spouses from testifying against one another. Clary is charged with the 2011 murder and robbery of George Murphy and the prosecution claims that Clary admitted her guilt to Case and that Case knows other facts helpful to the prosecution. It appears Case may be the prosecution's star witness.
If Case and Clary were a legally married opposite-sex couple this would be an easy decision. Case would be exempt from testifying. But they're not. They're two women who in 2004 traveled to Vermont to obtain a civil union. That same year Kentucky voters amended the state constitution to define marriage as between one man and one woman. Under Kentucky law, Case and Clary are not recognized as spouses and the spousal privilege does not apply. But Case intends to argue that the law is unconstitutional and that Kentucky must exempt her from testifying against Clary.
Legally Case faces an uphill battle. To win, she must convince the judge that she and Clary are married and then that the Kentucky law refusing to recognize the marriage is unconstitutional. After the Supreme Court's decision in United States v. Windsor, Case has a strong argument that the Kentucky law is unconstitutional. Surprisingly, she may have a more difficult time establishing that she and Clary are married. In the absence of a recognized marriage, Case may be ineligible to even challenge Kentucky law let alone claim spousal privilege.
Technically Case and Clary are not married. In 2009 when Vermont allowed same-sex couples to marry, it did not retroactively recognize couples in a civil union as married. Couples in civil unions were required to obtain marriage licenses and until they did the couple remained joined in a civil union. If Case and Clary lived in Vermont or the crime occurred in Vermont, this technicality would be a distinction without a difference. In Vermont, parties to a civil union have spousal equivalent benefits including spousal privilege. But Clary isn't being prosecuted in Vermont and there is no evidence that the couple obtained a Vermont marriage license.
This could kill Case's claim to spousal privilege. Other couples who joined in civil unions or domestic partnerships have attempted to challenge state marriage prohibition laws and failed. One court found a couple in a civil union lacked the authority to challenge the state and federal definition of marriage because "a civil union is its own creature that is offered only to same-sex individuals and that is distinct from full-scale legal marriages." Another court suggested domestic partnerships were legally more akin to corporations than to marriages.
These courts are not alone in making this distinction. The Office of Personnel Management (OPM), the human resource agency for the federal government, recently decided that federal employees who are in civil unions or domestic partnerships "will remain ineligible for most Federal benefits programs." OPM, like the courts, distinguished between a state's decision to use the term "marriage" and the state's decision to provide the rights and benefits of marriage under a different label. OPM's decision begs the question: If a state is willing to provide marital benefits to a couple, shouldn't the federal government be prepared to do the same? (I will leave the answer for another post.)
In addition to illustrating the tragic consequences for gay and lesbian couples living in states with marriage prohibition laws, this case answers the question "why not civil unions?" Currently five states, Colorado, Hawaii, Illinois, Nevada, New Jersey and Oregon, have laws that authorize same-sex couples to enter civil unions or to register as domestic partners. The state laws provide that the parties to these unions have all the same rights, benefits and obligations as spouses to a marriage. But beyond those states' borders, the couple has no legal protections. They are legal strangers.
Although some may think that civil unions are a thing of the past, the Supreme Court's decision in Windsor did not directly address whether a state's decision to offer an alternative to marriage would violate the federal constitution. The Court was careful to confine its opinion and its holding "to those lawful marriages." This week, a New Jersey court will hear arguments on this very question. But any decision is likely to be appealed and it could take years for the courts to resolve the question. (Of course the New Jersey legislature, or rather Governor Christie, could end the dispute more quickly by vowing to sign the next marriage equality bill he is presented.)
States with marriage prohibition laws could attempt to avoid constitutional challenges by providing gay and lesbian couples with all the rights and benefits of marriage but without the label of marriage. Civil unions remain a popular option among conservatives. Given that 30 states have Republican governors and 26 have Republican controlled legislatures, this is not an unlikely scenario. To be sure, national marriage equality is on the horizon -- but in the distance. As the battle now turns to the state courts and state legislatures, advocates should be wary about accepting anything less than marriage. As this case illustrates, "spousal equivalent" is not equivalent at all.