Friday, July 5, 2013

Marriage of Equals

When people thought of the legal rights that same-sex couples achieved through the U.S. Supreme Court's Defense of Marriage Act (DOMA) decision, criminal law probably wasn't the first topic to come to mind. After all, the ramifications of United States v. Windsor for the criminal legal process aren't overwhelming. Nevertheless, the holding that same-sex spouses are entitled to the same federal rights as any other spouses got some of us thinking about a set of criminal law antiques: spousal privileges.

Spousal privileges stemmed many eras ago from a romantic view of family as an institution. The theory was that we should revere family even more than truth in legal proceedings. Two evidentiary rules, the spousal testimonial privilege and confidential marital communication privilege, were born. And they have for the most part survived.

The spousal testimonial privilege provides that spouses who are married at the time of trial have the right not to testify against each other. In most jurisdictions it's up to the spouse who would testify to claim the privilege. A few give the power to the spouse who's in hot water--in those states the spouse on trial can prevent the other spouse from testifying. Here's an example: 

Kimmy and Tosha were unmarried partners living in a state that acknowledges gay marriage. The FBI arrested Kimmy for armed robbery. Tosha was with Kimmy immediately before and after the robbery in question and knew of Kimmy's plans to stick up a local bank. While Kimmy was awaiting trial, the couple got married. At Kimmy's eventual trial Tosha can legally refuse to testify. (In just a few states Kimmy would be able to prevent Tosha from testifying even if Tosha wanted to be a witness.)  

The confidential marital communication privilege applies to personal conversations between spouses in private settings, even if the couple separates or divorces before trial. So, in the above scenario, let's assume Kimmy and Tosha were married before the armed robbery. When Kimmy returned home on the eventful night, she told Tosha, "That was a close call! I almost got shot!" In most jurisdictions, even if Tosha chose to testify against Kimmy at trial, Kimmy could prevent her from testifying regarding the statement about nearly being shot.

The DOMA decision doesn't change much about spousal privileges for same-sex couples in state court. Individual states will apply the privileges according to their respective marriage laws. But it looks like the spousal privileges will be available for those in same-sex marriages in all federal courts. See Privileged Information at Trial: Spousal Privileges for Same-Sex Couples.

Application of the spousal privileges is just one way in which Windsor shows us how much work is left to achieve equality. The decision didn't say that gay and lesbian couples have a right to marry. All it said was that the federal government must acknowledge same-sex marriages and provide rights and responsibilities accordingly.

Whether or not spousal privileges have a place in modern society, applying them on the basis of sexual orientation doesn't. Let's hope that the next step in social equality is recognizing a fundamental right to marriage for everyone.