Spousal privilege and gay marriage
By: Dr. Peter A. Barone, Esq.
In a major court decision in the area
of marriages there was a ground breaking case decided in June of 2015 wherein the United States Supreme
Court ruled that all states must recognize same-sex marriages performed in
other states; and every state must issue marriage licenses to same-sex couples.
This was a very dynamic move in that the Tenth Amendment of the Bill of Rights
of the United States Constitution provides that decision like this are to be
left up to the states legislators and yet the Supreme Court issued this holding
which has had unsettling affects and now has a major effect on the Rules of
Criminal Procedures in both the state and federal legal systems.
In the case of Obergefell v. Hodges, 576 U.S. ___ (2015), the United
States Supreme Court, with this controversial decision answered the question of
how courts will treat same-sex couples with respect to the two privileges
discussed here. With the Supreme Court’s decision in this case it became very clear
that the answer to the question was very simple in that the Supreme Court held
that same-sex couples enjoy the same protections as do their opposite-sex
counterparts.
Courts and the federal and state governments recognize
the spousal privilege in order to protect marital relationships from the harm
that would befall them if spouses could be forced to testify against each
other. However, this goal must be balanced against the competing need to avoid
the harm caused when evidence is withheld from trials. Balancing these competing
needs has resulted in various exceptions to, and underlying requirements for,
the spousal privilege.
