In A Case Of First Impression In Kentucky, Trial Judge Rules That The Priviledge Prohibiting Testimony Against A Spouse Does Not Apply To Homosexuals!

Same-sex spouse must testify against wife, judge rules

A Jefferson Circuit Court Judge ruled Monday that while heterosexual spouses can’t be forced to testify against each other, the law does not apply to a same-sex couple that entered into a civil union in Vermont nine years ago.

The ruling came in the case of Bobbie Jo Clary, who is charged with murdering and robbing a man in 2011. The Jefferson County Commonwealth’s Attorney’s office subpoenaed Geneva Case, aimed at getting her to testify that Clary told her about the killing and that Case saw Clary clean blood out of the man's van and abandon it in Southern Indiana.

Clary claimed that Case should not have to testify, but Judge Susan Schultz Gibson ruled that Kentucky’s ban on same sex marriage and on recognizing same sex unions from other states means the privilege does not apply.

Gibson on Monday also denied Clary’s motion to dismiss the case based on her contention of self-defense. Clary is accused of fatally wounding Murphy with a blunt object in his Portland home. Clary claims Murphy, 64, was raping her and she fought back by hitting him in the head with a hammer.

In invoking the marital privilege and filing a motion to quash the state’s subpoena, Clary and Case argued that their Vermont civil union affords them the rights, benefits and responsibilities of a married couple. They also point to Vermont’s 2009 approval of same-sex marriage.

Kentucky’s refusal to recognize the marital rights of same sex couples violates the constitutions of the United States and Kentucky, the pair says.

Gibson, however, said in her ruling that “It is abundantly clear” that same-sex marriages or civil unions entered into in states that permit them “will not be recognized as valid marriages or unions within this state.”

Gibson ruled that she was not required to weigh the constitutionality of Kentucky’s law because Clary and Case are not married. She noted that there was no evidence that the couple took advantage of Vermont's 2009 decision to allow same-sex couples to convert earlier civil unions to marriages.
“At a minimum,” Kentucky’s marital privilege “would require that the parties be actually married. Ms”. Case and the defendant are not," the judge wrote.

Gibson noted that in 2004, the same year Clary and Case entered a civil union, Kentucky voters approved a state constitutional amendment providing that “only a marriage between one man and one woman shall be valid or recognized as a marriage” in the state.

Clary had argued that two rulings from the United States Supreme Court this year bolstered her case for privilege. The high court struck down the portion of the Defense of Marriage Act that had barred recognition of same-sex marriages for all federal purposes. And the justices let stand a federal district court ruling that struck down California’s attempt to bar same-same marriage after it had already been permitted in that state.