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Same-sex Kentucky couple challenges marriage equality ban–with an unusual twist

Marriage equality

By Jacob CombsKentucky state seal

In Kentucky, spouses cannot be forced to testify against one another under a state law known as the ‘husband/wife privelege.’  But Geneva Case, whose spouse Bobbie Joe Clary is accused of murder, may not be protected by the provision for a familiar, disappointing reason: because the two spouses are women.

Clary and Case obtained a civil union in Vermont in 2004–a union which is now recognized as a marriage by Vermont, which legalized marriage equality in 2009 and considers previous civil unions the legal equivalents of marriages.  The Kentucky Constitution, however, contains a provision–added by voters in 2004–that reads, “only a marriage between one man and one woman shall be valid or recognized as a marriage.”

The language probably sounds familiar: it’s almost a word-for-word equivalent of California’s Proposition 8.  In theory, the Supreme Court’s determination of Prop 8’s constitutionality–due by the end of next week–could affect Kentucky’s ban, and bans like it in the majority of the states.  But it seems unlikely at this juncture that the Court will issue such a broad ruling, meaning that litigation will continue across the country.

As the Louisville-based Courier-Journal explains, one of the the central issue in Clary’s case is whether the couple’s Vermont civil union should afford them any protection in Kentucky:

“That ceremony is not a ‘marriage’ that is valid and recognized under Kentucky law,” prosecutors said in a court motion, noting that marriage between members of the same sex is prohibited in Kentucky. “Geneva Case and the defendant cannot prove the existence of a marriage under Kentucky law.”

But attorneys for Clary say they are 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.

If DOMA is invalidated next week by the Supreme Court–as many court observers expect it will be–litigation like Case and Clary’s may become even more common.  On the surface, it seems relatively straightforward that the couple will not be protected by Kentucky’s ‘husband/wife privilege’ because of the state’s constitutional ban on marriage equality.  Still, cases like these could challenge equal marriage bans in the red states, highlighting in a novel manner the many ways in which same-sex couples are treated differently than their opposite-sex counterparts.

1 Comment

  • 1. Soccer Passing Drills  |  June 20, 2013 at 6:29 pm

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