Same-Sex Marriages, the Spousal Privilege Not To Testify, and Iowa vs. Federal Law

From the Des Moines Register:

Marla Stevens married Phyllis Stevens in a civil union in Toronto, Ontario, in 2005. [EV adds: Stevens’s response to the motion to compel say they “were married pursuant to civil ceremony in Canada on July 26, 2003,” which sounds like an outright marriage, not just a civil union.]

Marla Stevens is asserting that she cannot be required to give a deposition in a [federal] lawsuit filed by her partner’s former employer, Aviva USA, partially because Iowa law says “neither husband nor wife” can be questioned in a legal proceeding about any communication that took place between them.

A similar issue is arising in a federal criminal case. A few thoughts:

1. The federal criminal case, and the federal law (Computer Fraud and Abuse Act) claims in the civil case, follow the federal law of evidentiary privileges. And under the federal Defense of Marriage Act, federal statutes and regulations that provide special treatment to marriages or spouses apply only to opposite-sex marriages (This is a separate provision from the one that provides that states need not recognize out-of-state same-sex marriages.) That provision would be unconstitutional only if the federal courts conclude that there’s a constitutional right to same-sex marriage on equal terms with opposite-sex marriage; the Full Faith and Credit Clause challenges to DOMA wouldn’t apply here, because the issue is whether federal law can treat opposite-sex marriage as the only sort of marriage that gets various federal privileges.

But most of the federal law of evidentiary privileges, including the spousal confidential communication privilege, is not statutory; it’s common law, created by courts. The enabling statutory provision for that — Rule 501 of the Federal Rules of Evidence — doesn’t use the terms “marriage” or “spouse,” and thus isn’t covered by DOMA. The federal courts thus remain free, I think, to develop the spousal confidential communication privilege to include same-sex marriages, or for that matter same-sex civil unions. Yet I suspect that, influenced by Congressional policy as set in DOMA, the federal courts will not treat same-sex marriages that way.

2. The state law (conversion, fraud, and unjust enrichment) claims are also in federal court, and they also in the first instance follow the Federal Rules of Evidence; but Rule 501 provides that “in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.” I think that means that if state law — as interpreted by the courts in the wake of the Iowa Supreme Court decision recognizing a constitutional right to same-sex marriage — allows a spousal confidential communication privilege, federal courts would follow it as to state law claims, even if the privilege extends to same-sex couples.

3. But wait! There’s also a question of which state’s law would apply; according to the plaintiff’s reply memorandum, “It is the law of the state of the marital domicile — not the law of the forum state — that controls” on the question of the validity of the marriage, and thus of the availability of the spousal confidential communications privilege, and apparently there’s some controversy about whether Marla Stevens is an Iowa resident. On the other hand, the question would be whether Iowa law (the law to which the federal court would look in the first instance on evidentiary privilege questions related to Iowa state law claims) would conclude that the validity of the marriage should look to the law of the state of the marital domicile; and the defendant doesn’t cite any Iowa cases on the subject.

In any case, that’s my tentative thinking about the question; I’d love to hear what others who know evidentiary privilege law and DOMA have to say about this.

Thanks to Adam Gregg for the pointer.