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.
Oren says:
Stupid question, but is there a general rule about how evidence that is admissible w.r.t. one claim before the court but not another is to be treated? That is, are they going to tell the jury “please consider the spouse’s testimony only with respect to the Federal charge”?
Beyond being impractical, this seems to be a meaningless distinction since all of the violations might flow from the same predicate act.
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October 29, 2009, 3:46 pmCornellian says:
Per EV’s point, I’m not quite sure of this but I don’t think Canadian law has ever had civil unions. It’s marriage or nothing.
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October 29, 2009, 4:21 pmNathanM says:
“Marriage or nothing” isn’t entirely correct, but you are right that Canada does not have, and never has had, civil unions.
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October 29, 2009, 4:24 pmptt says:
Several Canadian provinces had “civil unions” of varying names and rights before marriage became available nationwide.
As for “marriage or nothing”, at least Quebec still recognizes common-law marriage, so you have to go out of your way to achieve nothingness...
Wikipedia
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October 29, 2009, 4:29 pmptt says:
Oooops
Wikipedia
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October 29, 2009, 4:31 pmRandy says:
Reading the entire post has made me a little too woozy to reply. All those issues! Wouldn’t it be simpler just to allow SSM so that everyone has the same rights?
Oh, right.......silly me.
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October 29, 2009, 4:46 pmShelbyC says:
slacker.
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October 29, 2009, 5:04 pmGabriel Malor says:
I think you’re suggesting too much. The courts don’t have to conclude that the constitutional right to same-sex marriage is “on equal terms” with opposite sex marriage. (Actually, given the phrasing, I’m not sure what your suggesting.)
Rather, the government would merely have to show that there is a rational basis (or whatever amorphous standard the Court adopted in Lawrence) for treating opposite-sex spouses different than same-sex spouses. So long as such a rational basis exists (and is not motivated by animus contra Romer, the Courts would not have to extend the evidentiary privilege to opposite-sex couples.
The distinction, I think is that the courts don’t have to rule on the constitutional right to same-sex marriage, as you appear to suggest. Rather, they only have to rule on the constitutional right to equal protection of the law.
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October 29, 2009, 5:28 pmChrisTS says:
Hah! You sleazy satanist, we kow what you are after. Simplicity is the devil’s handmaiden.
(or...something like that)
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October 29, 2009, 5:32 pmChrisTS says:
In case the edit did not work, it should have been know and devil’s.
But, I have a better one: The road to Hades is paved with principles.
I rather like that one.
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October 29, 2009, 5:35 pmASlyJD says:
Oh, I think it was paved with principals . . .
At least, that was my theory in high school.
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October 29, 2009, 5:49 pmBored Lawyer says:
The last time I checked, the rule in most Circuits is that in a case with BOTH federal and state claims, the federal rule of privilege applies.
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October 29, 2009, 6:07 pmOren says:
Bored Lawyer, is that compatible with Rule 501?
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October 29, 2009, 6:33 pmThe Volokh Conspiracy » Blog Archive » Same-Sex Marriages, the … « Blogging says:
[...] Read more here: The Volokh Conspiracy » Blog Archive » Same-Sex Marriages, the … [...]
Bored Lawyer says:
It actually is a Circuit split. One court summarized it as follows:
Garza v. Scott & White Mem. Hosp., 234 F.R.D. 617, 625 (W.D. Tex. 2005) The Garza court adopted the second approach, although it distinguished cases where the evidence is relevance to both federal and state claims (federal privilege applies) and evidence relevant only to state claims.
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October 29, 2009, 8:48 pmArt Leonard says:
I think there is more than one lawsuit. There is a federal prosecution, and then there is a civil suit (probably a diversity case) brought by the former employer. And I think the deposition is sought in the civil diversity case, in which case 501 applies and state law applies. But it is difficult to be sure of all this because we are relying on newspaper reports which may be written by reporters who are not altogether sure what they are writing about when it comes to such issues.
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October 29, 2009, 11:20 pmDaniel says:
It seems to me that things are getting very complicated when you have a federal system of laws where one level of the system recognizes 2 people as being married and another level does not recognize the marriage. Is there another kind of marriage where this is the case? Are there other kinds of marriages where the state recognizes a couple as being married, but the federal government does not? Are there marriages where the State does not recognize a couple who claims to be married, but the Federal Government does recognize the marriage? Is there another kind of marriage that is legal and legally recognized in one state, but not in another?
I am a High School Government Teacher and these questions have been coming up more and more frequently when we discuss the federal system. I have my opinions, but I try not to bring them in to my class. I ask that my students explain their position on an issue such as this, then I ask them to research and make convincing arguments against their beliefs. It is my belief that an intelligent person should know and be able to make convincing arguments on all sides of the issues that face our nation. Anyhow, all thoughts will be appreciated.
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October 30, 2009, 12:16 amShelbyC says:
You’d think there would be issues with folks from countries where polygamous marriages are recoginzed. If a guy with two wives comes to the US, which one is he married to? Can he pick which one? Can they pick? Both? Neither?
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October 30, 2009, 12:51 pmGray Peterson says:
You’re telling me that the comments on the House and Senate floor during the 1996 debate on DOMA, including “God created Adam and Even, not Adam and Steve”, were not evidence of animus against GLBT people?
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October 30, 2009, 11:23 pmR. Richard Schweitzer says:
The wording of the Iowa statute is not being addressed, it specifies only a “husband” and “wife” relationship.
Under the common definition of those words, they would not be applicable in a same sex union.
Some statutes may use a broader “spouse” terminology. That is not the case here.
Of course, the deficiency could be remedied by a statute providing for a specified adoption of a specific designation in the act of union. Currently that would not be popular or common.
It is true that the term “husband” could be given an “extensive” meaning, but “wife” is generally limited and not subject to extension
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October 31, 2009, 10:51 pmPoliGazette » Conflicting Approaches To Same-Sex Marriage Raise Legal Issues says:
[...] marriage by a few states is raising some unexpected but inevitable legal issues. Specifically, the Volokh Conspiracy points out that courts now need to grapple with the effects of same-sex marriage on civil litigation and [...]
Bill says:
Just imagine…
If heterosexuals had treated their gay & lesbian children equally under the law instead of trying so immorally to carve them out of the United States Constitution, we might not find ourself in the position of having to clean up the mess of our bigotry.
Morality indeed, folks. Morality indeed.
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November 1, 2009, 1:15 pmParenthetical says:
Canada’s history with recognition of same-sex couples is a bit convoluted.
Literally speaking, only Quebec had “civil unions” (it still has them). Some other provinces had vaguely similar provisions, albeit with different names. And some incidents of marriage had been generally available for some time before the various marriage rulings came down (and the Government acquiesced).
Given the words in the pleadings, this seems to be a literal marriage (indeed it was solemnized just six weeks after the Ontario court’s Halpern decision).
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November 1, 2009, 2:31 pm