Retroactive recognition of same-sex marriage for the purposes of the confidential marital communications privilege.

AuthorYoung, Steven A.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND: SAME-SEX MARRIAGES AND THE SPOUSAL PRIVILEGES A. Same-Sex Marriages B. The Confidential Marital Communications Privilege II. THE RETROACTIVITY OF OBERGEFELL III. RETROACTIVITY THROUGH COMMON-LAW MARRIAGE..... A. Pennsylvania B. Texas IV. RETROACTIVITY THROUGH A MODIFICATION OF THE CONFIDENTIAL MARITAL COMMUNICATIONS PRIVILEGE A. The Privileges in Federal Court B. The Courts Would Be Justified in Creating an Entirely New Privilege C. Proposed Test and Factors for Consideration CONCLUSION Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty. (1)

INTRODUCTION

Imagine two Georgians, Pat and Chris, who met and fell in love. In 2010 they exchanged vows in a ceremony attended by friends and family, even though the State of Georgia would not legally recognize their same-sex marriage. Five years later, Pat and Chris celebrated with their friends when Obergefell was announced, and the two were the first in line to receive their marriage license.

Just a few weeks later, Pat and Chris's jubilation was cut short when Pat was arrested and charged with criminal conspiracy. The prosecution called Chris to the stand to testify as to a confession Pat made to Chris a year before. Pat's lawyer objected and claimed the statement was privileged as a confidential marital communication, but the judge overruled the objection. Caught between the law and love, Chris refused to testify and, although Pat went free, Chris was thrown in jail for contempt of court. (2)

Although the story of Pat and Chris is entirely fictitious, it is not without real-world precedent. In 2006 one of the first targets of the Enron investigation was William Dodson, the same-sex partner of an Enron executive who could not claim the spousal privilege of not testifying in court. (3) In 2013 a Kentucky court found that a defendant's same-sex partner could not invoke marital privileges despite the couple's Vermont civil union, sinking the defendant's hopes of being acquitted. (4) Indeed, arguments for same-sex marital privileges have been laughed out of court since at least 1997, when the Appellate Division of the Supreme Court of New York rejected the notion that the privilege would extend to "homosexuals in a spousal relationship." (5) Beyond these examples, many, many more would probably exist were it not for the "settled law" that the marital communications privilege does not, and has never been expanded to, include nonmarried couples. (6)

On the day the Supreme Court rendered its decision in Obergefell v. Hodges, it seemed as though the decision rendered questions associated with same-sex spousal privilege moot: the Court declared that the Constitution requires the recognition of same-sex marriages on the same footing as opposite-sex marriages, with the same rights, privileges, and benefits. (7) Those rights, privileges, and benefits number more than one thousand on the federal level and many more on the state level. (8)

Although advocates of same-sex marriage would disagree, (9) many see the decision in Obergefell as fundamentally redefining marriage. (10) Leaving that debate aside, it is a fact that the rights, benefits, and privileges of marriage have changed dramatically over the past century: many of the privileges of marriage, such as immunity from antifornication statutes, have been expanded to unmarried couples. (11) In fact, some argue, the importance of marriage for same-sex couples is entirely overstated: most of the benefits of marriage can be contracted privately, (12) and those that cannot are positive benefits the state can dispense as it sees fit. (13) However, there are a few benefits that can neither be replicated by contract nor dismissed as a gratuitous benefit, and chief among them are the spousal evidentiary privileges. (14)

The two spousal privileges--the spousal testimonial privilege and the confidential marital communications privilege (15)--had been unavailable in federal court to legally married same-sex couples until United States v. Windsor, (16) and completely unavailable to same-sex couples that were barred from marriage by state law until Obergefell. (17) Although Obergefell makes the privileges prospectively available to same-sex spouses today, (18) there exists a strange twilight zone for the couples like Pat and Chris in this Note's opening fantasia. Because the confidential marital communications privilege applies only to couples who were legally married at the time of the communication, (19) same-sex couples who were barred from marrying in their home states can be compelled to share pre-Obergefell marital secrets on the stand. (20) The confidential marital communications privilege is of particular concern as it protects the communications between spouses regardless of their marital state at the time of trial. (21) The spousal testimonial privilege, on the other hand, requires that the spouses be married at the time of trial. (22) Although it may be fair to insist that post-Obergefell couples actually obtain marriage licenses in order to invoke the spousal testimonial privilege, no remedy currently exists for same-sex couples to avoid the inequities forced upon them by being forced to disclose confidential marital communications.

This Note argues that the promise of liberty enshrined in Obergefell requires a modification of the confidential marital communications privilege vis-a-vis those couples unfairly prejudiced by now-unconstitutional laws. This Note presents this argument in four parts.

Part I provides general background necessary for understanding the following Parts. It first presents a brief synopsis of the battle for same-sex marriages from the first attempt to have a state recognize a gay marriage in the 1970s up to the Supreme Court's ruling in Obergefell v. Hodges. It then presents an overview of the two marital privileges before going into greater detail of the confidential marital communication privilege and its unique nature among the broader evidentiary privileges.

Part II analyzes the language of Obergefell to determine whether the Court intended for the rights of marriage to be applied retroactively to same-sex marriages. (23) The alternative--that the decision only prospectively allows same-sex couples to get marriage licenses--would preclude the rest of this Note's argument. Happily, not only does the analysis in this Part demonstrate that the Court intended for retroactive recognition of same-sex marriages, but the examples in the following Parts bolster the analysis.

Part III presents one way in which same-sex marriages can achieve retroactive recognition: through common-law marriage. After providing a brief background of common-law marriage doctrine, this Part presents, for the first time in the scholarly literature, several examples of this method of retroactive recognition achieving success in Texas and Pennsylvania.

Part IV provides an argument for the retroactive recognition of same-sex marriages in states that do not recognize common-law marriage. This Part focuses on the traditional rationales for changes in evidentiary privileges in the federal courts. It argues that public policy and issues of equity mandate the recognition of the confidential marital communications privilege for couples that would have been married but for unconstitutional state limitations on marriage. Building on the elements of common-law marriage, this Part concludes by presenting elements of a test that the courts can apply in deciding whether to expand the privilege in any given case. The end result of the analysis presented in this Note is a method for the future application of the retroactivity of same-sex marriages beyond the scope of the marital communications privilege.

  1. BACKGROUND: SAME-SEX MARRIAGES AND THE SPOUSAL PRIVILEGES

    1. Same-Sex Marriages

      Two people of the same sex have been entering into marriage-like relationships throughout history. (24) Beginning in the 1960s, the Metropolitan Community Church began performing religious marriages of same-sex couples--performing an estimated 85,000 by the early twenty-first century. (25) Whether informal arrangements or religiously sanctified unions, the marriages had no legal status. (26)

      This lack of legal status rubbed many the wrong way--not only for reasons of "dignity," (27) but also for the lack of the many rights, benefits, and privileges that came with legal recognition of marriage. (28) Many same-sex couples instead turned to contractual arrangements to gain some of the property, (29) hospital visitation, (30) and parenting rights (31) of legally recognized marriages.

      The fight for governmental recognition of same-sex marriages dates back to the 1970s when the first gay couple attempted to marry in the state of Minnesota. (32) That attempt--and many others thereafter--failed miserably. (33) In 1993 Hawaii nearly legalized same-sex marriage, (34) prompting Congress to pass the Defense of Marriage Act (DOMA). (35) DOMA was passed to ensure that the federal government would never have to recognize a same-sex marriage. (36)

      In 1999 some states began recognizing marriage-like statuses for same-sex couples under the titles of domestic partnerships and civil unions. (37) The marital evidentiary privileges did not necessarily attach to those legal constructs. Although they were discussed in early drafts of California's domestic partnership laws, (38) no mention appears in the final bill as chaptered. (39) Domestic partnership laws in Hawaii, Maine, and New Jersey were silent as to the evidentiary privileges. (40) Vermont alone specifically extended the marital privileges to civil unions, (41) but even there, the privileges did not necessarily follow.

      In 2013 Kentucky brought murder charges against Bobbie Jo Clary and sought to have her same-sex spouse, Geneva Case, testify against her. (42) Before moving to Kentucky, Ms. Case and Ms. Clary lived in Vermont and...

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