By Tim Ghianni
NASHVILLE, Tenn., Aug 11 (Reuters) - A legal debate over whether one member of a same-sex couple has spousal privilege that would shield her from testifying against her partner is at the heart of a capital murder case in politically conservative Kentucky.
Geneva Case, 49, does not want to testify in a Louisville court against her partner, Bobbie Jo Clary, 37, who is accused of beating George Murphy, 64, to death with a hammer in 2011 and then stealing his van.
Prosecutors say Case must testify because of her value as a witness, since she heard Clary admit to the slaying and also saw blood on the interior of the victim's van after the killing.
Clary says Murphy used a hammer to sexually assault her, and she defended herself by hitting him over the head.
Clary is also charged with tampering with evidence to cover up the crime. If convicted, Clary could face the death penalty.
Under Kentucky law, a person cannot be called to testify against his or her spouse. Most states have a similar type of law.
But Kentucky is not among the 13 states that have legalized gay marriage. In 2004, it amended the state constitution to define marriage as being a union between a man and a woman.
Susan Sommer, an attorney for Lambda Legal, a national legal organization for the protection of gay rights, said she was not familiar with the details of the Kentucky case, but Lambda believes gay couples should have the same legal protections as other married people.
"Spousal privilege is one part of the tremendous bundle of protections for a committed couple that come automatically with marriage," Sommer said.
Case and Clary were joined in a civil union in 2004 in Vermont. Vermont first allowed civil unions in 2000, but did not legalize same-sex marriage until 2009.
"Kentucky's marital privilege law does not give Ms. Case the right not to testify in a murder trial," said Stacy Greive, assistant commonwealth attorney for Jefferson County. "And the reason marital privilege does not apply to Ms. Case in her relationship with the defendant is because it is our opinion and our belief that they do not have a marriage that is recognized under Kentucky law."
Greive argues that not only is the union not recognized in Kentucky, but the couple has not presented proof they have a valid marriage under Vermont law. "They have a civil union, if you look at Vermont's statutes, they distinguish between civil unions and marriage," she said.
Both Clary's attorney, Angela Elleman, and Case's attorney, Bryan Gatewood, said the Kentucky marriage amendment is unconstitutional and the pair should be treated like any other married couple.
The attorneys also say they are cautiously optimistic that this case will lead to the amendment being held as unconstitutional, setting a precedent for change nationwide.
In light of recent U.S. Supreme Court rulings on gay marriage, "the climate is right" for the Kentucky amendment to be thrown out, Elleman said.
The high court in June forced the federal government to recognize same-sex marriages in states where it is legal and paved the way for it in California, the most populous state. The court struck down a section of the federal Defense of Marriage Act, limiting the definition of marriage as between a man and a woman for the purpose of federal benefits, as a violation of the U.S. Constitution's guarantee of equal protection under the law.
"I believe the handwriting is already on the wall," Gatewood said. He believes the Kentucky attorney general's office, which says it is reviewing the case, will find that the state law is unconstitutional under the same reasoning.
Elleman said it makes no sense to her that Kentucky does not recognize legal unions of same-sex partners but does recognize common-law marriages from other states.
She also pointed to the personal toll on the couple. "The commonwealth is seeking to call her wife as a witness against her, which obviously would cause irreparable harm to their relationship," Elleman said.
Case called the situation "very stressful" in an interview on WHAS-TV in Louisville. "I wish she could come home," Case said of Clary. "There's nothing we can do right now, though."
Elleman said she is confident her client will be acquitted, "whether her wife will testify or not."
Clary is being held on $75,000 bond.
The trial is set for Aug. 30. Jefferson County Judge Susan Schultz Gibson is expected to rule on the spousal privilege issue later this month.
Lambda's Sommer represented a woman in a criminal case in Maryland about two years ago who was asked to testify against her spouse.
In that case, which was not a homicide, the prosecutor opposed the use of spousal privilege since Maryland did not yet have gay marriage. The couple had married in another state. The judge in that case ruled that the woman did not have to testify against her spouse. (Reporting by Tim Ghianni; Editing and additional reporting by Mary Wisniewski; Editing by Eric Beech)