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Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, July 12, 2008

Same Sex, Different Privilege?: How Will The Confidenitial Marital Communications Privilege Apply To Same Sex Marriages In California?

A recent article by the Ventura County Star raises an interesting evidentiary issue prompted by the California Supreme Court's recent decision to strike down the state's ban on same sex marriage:  Will married same sex couples' private conversations be considered privileged marital communications inadmissible at trial?  In order to answer this question, let's look at California Code of Evidence Section 980, which indicates that:

     "Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between
him and the other spouse while they were husband and wife."

In essence, then, when a married couple engages in private communications during the course of a marriage, either spouse can refuse to render testimony against the other spouse and/or prevent the other spouse from testifying against him or her when the testimony relates to the communication.  So, if Bob returns home one dark and stormy night and confesses to his wife Alice in the confines of their bedroom that he committed murder, Alice can refuse to testify concerning that confession at Bob's subsequent murder trial and/or Bob can prevent Alice from rendering such testimony.  But what if Alice is Alex, and Bob and he are in a same sex marriage?

Well, then, a seeming problem arises with the last 3 words of Section 980, which only extends this confidential marital communications privilege to communications made between a "husband and wife."  So, under a literal and narrow reading of the privilege, communications between Bob and Alex would not be protected, but what is the purpose of the statute?  Well, the purpose of the privilege is the same as the purpose behind the attorney-client privilege, the psychotherapist-patient privilege, and the clergy-penitent privilege:  to preserve a relationship that there is a societal interest in preserving by promoting the flee flow of information through alleviating any worries that the individuals might have that the secrets they share could later be aired out in a courtroom.

As the court in Hanger Orthopedic Group, Inc. v. McMurray, 181 F.R.D. 525, 528 (M.D. Fla. 1998), put it:

     "Society has a deeply-rooted interest in the preservation of the peace of families, and in the maintenance of the sacred institution of marriage; and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status. Therefore the law places the band of its prohibition upon any breach of the confidence between husband and wife, by declaring all confidential communications between them to be incompetent matter for either of them to expose of witnesses."

So, in order for a California court to extend the privilege to same sex marriages, it would need to find that society has a deeply-rooted interest in the maintenance of the sacred institution of same sex marriage.  The California Supreme Court striking down the ban on same sex marriage caused a significant uproar in certain quarters, but a California court putting its imprimatur on the institution of same sex marriage itself would seem to raise the stakes significantly.  As a strong supporter of the institution of same sex marriage and granting same sex couples the exact same rights as every married couple, I would welcome such a ruling, but I wonder whether such a ruling would be palatable to those whose support for same sex marriage is more attenuated.

-CM

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