A Kentucky judge is weighing whether a same-sex couple qualifies for the privilege of not testifying against a spouse in a slaying case in Louisville.
The question arose in the case of Bobbie Joe Clary. Clary is charged in the Oct. 29, 2011, murder and robbery of 64-year-old George Murphy, accused of fatally wounding Murphy with a blunt object in his Portland home.
Clary is claiming self-defense, saying that Murphy was raping her and she fought back by hitting him in the head with a hammer.
The Courier-Journal reports (http://cjky.it/13UjPsJ ) Clary and partner Geneva Case were legally married in Vermont in 2004. Kentucky doesn’t recognize same-sex marriages.
Attorneys for Clary say the couple is legally married and denying them the same marital rights others have would be a violation of the Constitution.
The case has become the first legal test in the state over forcing same-sex partners to testify against each other–raising the broader issue of whether the state recognizes marriages or civil unions that are legal elsewhere. The case could have ramifications for issues such as divorces and division of property after death.
“It is going to have a huge impact,” Angela Elleman, an attorney for Clary, said.
Elleman noted that couples are leaving the state to marry and coming back with legal issues that are going to have to be resolved.
“It’s going to come up again and again and again,” she said.
Kentucky voters amended the state constitution in 2004 to say that “only a marriage between one man and one woman shall be valid or recognized as a marriage.”
Similar language passed as an amendment to the California Constitution in 2008. The amendment, known as Proposition 8, has been struck down by a federal appeals court. In what could be a sweeping case, the U.S. Supreme Court is expected to issue its verdict on the legality of the California gay-marriage ban soon.
Elleman said the Supreme Court ruling could affect the case here. Jefferson Circuit Court Judge Susan Schultz Gibson has set a July 30 hearing date.
Assistant Commonwealth’s Attorney Stacy Grieve said prosecutors are not trying to make a statement against gay marriage, just follow state law and let the jury hear from a “witness with essential information concerning” the murder.
“Our position is that Ms. Case and Ms. Clary are not in a valid marriage under Kentucky law,” Grieve said. “The murder happened here and we have to follow the laws of Kentucky.”
Clary is claiming self-defense, saying that Murphy was raping her and she fought back by hitting him in the head with a hammer. The prosecution says Clary admitted her guilt to Case, who also allegedly saw Clary clean blood out of Murphy’s van and abandon it in Southern Indiana.
But Case has told the prosecution she will not testify, invoking the “Husband-Wife” privilege under state law, where a spouse can refuse to testify as to events occurring after the date of their marriage.
Prosecutors have asked Gibson to refuse to recognize Case’s claim of spousal privilege and order her to testify. Clary’s attorneys argue that the civil union Clary and Case entered into was designed to give them all the rights, benefits and responsibilities of a married couple.
Susan Sommer, director of constitutional litigation at gay and lesbian rights organization Lambda Legal in New York, said there have been different outcomes across the country on the issue.
“This is very much about the privacy of the relationship between the two spouses and the importance of the state not piercing that relationship,” she said. “Their relationship is the same for all the purposes and why we have these privileges in the first place.”