Most people know that civil marriage comes with thousands of legal rights — the ability to file joint tax returns, to inherit property, to make medical decisions, to be on your spouse’s insurance…but one right most of us don’t give a lot of thought to is the right not to be incriminated by our spouse on the witness stand. Federal and state law throughout the U.S. offers spousal immunity that protects anyone from being forced onto the stand by the prosecution to testify against their husband or wife.
So what happens when you have a same-sex couple caught in a legal battle in a state where gay marriage isn’t recognized? Well, in the case of a recent Kentucky murder case, the answer seems to be that courts can discriminate against gay couples and deny them the protections given to straight couples in the same situation.
The trial in question is complicated — Bobbie Jo Clary has been accused of murdering a man two years ago, and her wife Geneva Case might be the key witness. Clary has been charged with fatally wounding George Murphy in his Portland home in 2011, then stealing his van. Clary maintains that the killing was one of self-defense, and that Murphy was raping her when she fought back by hitting him with a hammer.
Prosecutors allege that Case heard Clary admit to the murder and even witnessed her cleaning blood out of the victim’s van. Rightly or wrongly, Case has refused to testify against Clary — a decision which may be completely understandable to anyone in a long-term relationship. This choice is well within the rights of any legally-married heterosexual couple, regardless of which state they were married in or where they live.
This didn’t sit well with Judge Susan Schultz Gibson of Jefferson Circuit Court, who ruled Monday that since same-sex marriages aren’t legal under Kentucky law, Case could legally be forced to testify against her spouse. This despite the fact that the two women have had a civil union under Vermont law since 2004 — the closest they could get to legal marriage at the time.
Case’s lawyer plans to appeal the ruling in advance of the trial next February. He believes that the couple is married “for all intents and purposes” and should be treated the same as any married straight couple would be in this situation. This case is the first of its kind to hit the national stage, and could have far-reaching implications.
While this may be an ugly situation, the sad fact is, difficult times are often when civil rights matter the most. If we can’t rely on the court system to protect the rights of same-sex couples on the stand, how can we rely on them to offer hundreds of other vital protections to the LGBT community? Whether you believe Clary deserves to be convicted or not, that doesn’t change the fact that she and Case are being blatantly discriminated against based on their gender and sexual orientation — and that’s wrong, regardless of Clary’s guilt or innocence.