Same-sex spousal privilege in the US

Several states allow same-sex couples to enter into marriages/civil unions/domestic partnerships that grant them spousal privilege in state courts. AKAIK that doesn’t mean squat in federal courts or in states without similiar unions. So have there been any cases of same-sex couples attempting to invoke spousal privilege in federal/out of state court? Were they rejected as I assume? What happens if one partner simply refuses to testify against the other? Contempt of court, if so is one fined or jailed? For how long?

I do not know that any of this has been tested legally yet but there certainly is a controversy over this.

On the one hand you have Article IV, Section 1 of the US Constitution called the “Full Faith and Credit Clause”. Basically it says that states must respect the judicial rulings of other states. So, if you get married in Illinois you are still married in Texas.

On the flip side many states have passed Defense of Marriage Acts (DOMA) which explicitly prohibit same sex marriages.

I would assume spousal privilege would apply in the state that allowed marriage between a same sex couple. Whether that would apply in another state or on a federal level would likely end up in the US Supreme Court for them to decide.

I would have to agree with the above.

In the sate that allows same sex marriages or recognizes “unions” and the like, it would only make sense that ALL marital privileges apply, including not testifying against each other and so on. However, in the other states which have passed specific laws prohibiting all same sex unions, I would be willing to bet any out of state unions would not be recognized in their court system and would be sent to Federal/Supreme Court for final decision.

Then you have the other side of the coin… This country and our lovely government LOVES to make us THINK they are progressive and moving with the times - allowing same sex marriages and recognized unions is so “with the times” - but when push comes to shove and youe same sex spouse is a suspect in a crime and you are a possible witness, I am also willing to bet our "progressive, “moving with the times” goverment will tell you to take your marriage license and shove it where the sun doesn’t shine.

It’s really a coin toss. I think that it would all depend on the circumstances of the case - What crime are they suspected of? Who jurisdiction was it in? Things of that nature. And being the first case of it’s kind - it’s anyone’s guess where it would go.

If you are facing this situation… Good Luck to you! I hope you have a GREAT lawyer! If you were just cusious… you might want to actually consult a lawyer licensed in the state in question, they might have a better idea and you might get your curiosity satisfied. If you do - please post back! You have surely peaked my interest on the subject!

Don’t assume that the Full Faith and Credit clause of the Constitution will be applied by the courts to marriage. States have sometimes refused to recognize foreign (i.e., out-of-state) marriages that would not have been allowed in the state itself, and more often than not, the courts have allowed them to do that when it hasn’t been based on a suspect category like race.

William M. Richman is considered a leading authority on the subject, and I recommend the book he wrote with William Reynolds, The Full Faith and Credit Clause (Praeger 2004).


Assuming that a state would not recognize a same-sex marriage, it would judge a same-sex couple’s claim of marital privilege that same as it would for opposite-sex couples who were not legally married.

The article “Communication between unmarried couple living together as privileged” in American Law Reports (4 A.L.R.4th 422):

Pennsylvania v. Gorby, 527 Pa. 98, 588 A.2d 902 (1991):

I don’t know of any criminal cases but when Rosie O’Donnell was being sued (and suing) over the collapse of her eponymous magazine she tried to invoke spousal privilege in the state of New York so her spouse Kelli Carpenter could not be called to testify and was denied because they weren’t legally married. Now, they had not at that time attempted to enter into a legal marriage (they attempted to marry in San Francisco after the trial) so if they had gone to Massachusetts or Canada and legally married in that jurisdiction and then gone back to New York the outcome may have been different. Then-attorney general Elliot Spitzer had issued an opinion that while New York state law did not allow same-sex couples to marry it did require the state to recognize legal same-sex marriages performed in other jurisdictions.

There’s the rub. Will denying same-sex marriages be deemed a “suspect category”? It certainly is in my mind but the courts may not agree with me if this ever gets to trial.

Part of the issue is how the argument is broached. SCOTUS has consistently refused to recognize “sexual orientation” as a suspect classification. Cases that have hinged on sexual orientation discrimination (notably Rohmer v. Evans, the case that struck down Colorado’s infamous Amendment 2) have been decided on the much lower “rational basis” test, which means in layman’s terms that if there’s any rational reason for a state or Congress to enact a statute then it passes constitutional muster. Now, my belief is that of course there is no rational basis for restricting the rights, privileges or institution of marriage on the basis of sexual orientation but sadly, what I find irrational cuts no ice with the Supreme Court.

Sex is a suspect classification, and the standard used to determine if a law is unconstitutional sex discrimination is “intermediate scrutiny.” Under this standard, the law is constitutional if it involves “important governmental interests” that are “substantially furthered by substantially related means.” Again, to my way of thinking there are no important governmental interests that are substantially furthered by restricting marriage to mixed-sex couples, but that SCOTUS ice remains uncut.

The federal Defense of Marriage Act addresses the Full Faith and Credit Clause by stating that no state shall be required to give effect to any marriage or relationship treated like a marriage between people of the same sex entered into in another state. There are a number of constitutional arguments that Congress over-reached its powers in trying to exempt the states in this fashion under DOMA, but as I believe has been noted already in the thread states are already free to ignore marriages entered into in another jurisdiction if that marriage is against the public policy of the state. However, it is unlikely to the point of impossility that a state’s refusal to recognize, for example, an interfaith marriage or a marriage between otherwise competent elderly people on public policy grounds so that state power is not absolute.

So if two people are married in a same-sex marriage outside the US, and they visit, they are treated as two single people?

What happens with other forms of marriage that the US doesn’t recognise, such as those of three or more people?

A same-sex marriage would be recognized by states that allow same-sex marriage or same-sex unions, or states like New York that don’t allow it, but are willing to recognize it. The federal government, including immigration authorities, cannot recognize same-sex marriages due to the Defense of Marriage Act that Congress passed and President Clinton signed into law back in 1996.

For many years (until 1967), a similar situation existed for inter-racial marriages: they were recognized in much of the USA, but some states (mainly southern ones) specifically had laws making them illegal.

Are there court cases on record where a black wife was forced to testify against her white husband, because that state refused to recognize their marriage?

Lutwak v. United States, 344 U.S. 604 (1953) — no privilege protects void marriages.

But I don’t know of any case involving a spouse in an interracial marriage being forced to testify against the other spouse. Putting an unfriendly witness on the stand is seldom a good idea, and I think most people would rather risk a contempt charge than testify unwillingly against a spouse.