Murder Prosecution Raises Multiple Same-Sex Marriage Recognition Questions

A current murder prosecution in Kentucky happens to simultaneously raise two different same-sex-marriage recognition problems that I’ve previously blogged about. In Kentucky, as in many states, spouses don’t have to testify against one another about things they said while married. Ms. Bobby Jo Clary is on trial for murder, and the state wants her partner, Geneva Case, to testify about some things Clary apparently told her. Case doesn’t want to testify.

So far, however, the trial judge has ruled that Case has to testify for what seems to be a combination of two reasons — Kentucky doesn’t recognize same-sex marriages, and anyway Clary and Case aren’t married; they got a civil union in Vermont in 2004. (I’m going just by the description in the news reports here — I haven’t looked to see if there’s a written ruling from the court.) As readers might realize, this triggers two different questions I’ve been blogging about recently, and to win Case and Clary will have to prevail on both.

First, is there an obligation to recognition to recognize out-of-state same-sex marriages? The Kentucky Constitution says that same-sex marriage (and legal statuses “substantially similar to that of marriage”) shall not be “valid or recognized” in Kentucky. This triggers the question that I wrote about the for the NYU Journal of Law & Liberty. (My answer, recall, is that the logic of Windsor might reasonably be extended to require their marriage to be recognized if they were residents of Vermont at the time.)

Second, even if there is an obligation to recognize out-of-state same-sex marriages, does it apply to couples who have what is technically a civil union rather than a marriage? Vermont now has same-sex marriages, but Case and Clary got married when it was only a civil-union state. And when same-sex marriage was legalized, Vermont did not automatically convert old civil unions to marriages; you had to specifically re-apply. This triggers the question that I wrote about earlier on this blog, about the extent to which civil unions are entitled to the same rights as marriages — either as a constitutional matter or a statutory matter. I have been thinking about this second question lately and hope to have more to say about it soon.

UPDATE: Here’s a link to the opinion, which proceeds pretty much along the lines I expected (including a blending of both of the two arguments discussed above). It says that the couple’s civil union was before they moved to Kentucky, which implies that it may well be constitutionally entitled to recognition, depending on the resolution of the civil union v. marriage problem.

Powered by WordPress. Designed by Woo Themes