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urlSame-sex marriage has gained some major traction in recent years. Some of the opponents have proposed civil unions as a way to “keep marriage separate and sacred.” In evidence law, there’s a doctrine that deals with testimonial privileges of spouses. There are two related doctrines, but the one at issue in Kentucky was the so-called spousal testimonial privilege. Many states have these rules as the privilege has been passed down from England through the centuries by what lawyers call “common law.” The privilege says that the government cannot force a spouse to be a witness against another spouse. The two women in Kentucky had a civil union in Vermont. One of the two women was on trial for homicide and the other spouse attempted to invoke the privilege so that she could refuse to testify. The court in Kentucky ruled that the privilege did not apply because two women could not marry in Kentucky, but it went further. The Kentucky court also ruled that since Vermont separately designated civil unions and marriages, they were two different things, and therefore, the privilege did not apply to the civil union. Find the opinion here.

Such a ruling raises a few interesting questions. First, of course, is whether the spousal testimonial privilege even makes sense or is good policy, regardless of whether the couple in question is of different sexes or the same sex. That policy debate is for another article, although I will say, it seems based on fairly outdated logic. The second question highlights what is a central issue in the debate over same-sex marriage — could states offer civil unions as effectively the same alternative. Proponents of same-sex marriage have argued that even if civil unions are equivalent in all legal respects, you are choosing to name it differently, so people will see it differently than marriage. This decision bolsters the point. The judge in Kentucky specifically pointed to the label and reasoned, well, it is called something other than marriage, so it must be different. Although this ruling is unlikely to change the lives of many same-sex couples, it does have an important symbolic role in demonstrating the importance of a label in this particular context.

Finally, after reading through the decision, I wondered whether Pennsylvania would have applied the privilege to this situation. The answer is probably not, but the Pennsylvania rule does not limit its scope to licensed marriages. The rule does require a “lawful marriage,” by either license or common law. Now since Pennsylvania presently recognizes lawful marriages only between members of the opposite sex, this point is likely the end of the inquiry. A creative lawyer, though, could argue that since relevant court decisions have looked not only to black letter legal status of the marriage, but also to the character of the relationship, the rule should apply to same-sex couples. For instance, in some decisions Pennsylvania courts have asked whether the couple has demonstrated that they are regarded in the community, or have the general reputation, as being married. Such an inquiry is relevant in cases where the couple claims common law marriage. That’s an important point because it asks a court to consider how the couple is regarded besides their basic legal status. Unless Pennsylvania at least had a civil union statute, I would not expect the privilege to apply, although one could make a reasonable argument for it.

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