Here in the U.S., lesbians and gay men are second-class citizens in
the court of law. Many readers are probably now familiar with the
Defense of Marriage Act (DOMA) -- the federal law that stipulates that,
for federal purposes, marriage is between a man and a woman. And many
are familiar with some of the disadvantages this imposes on same-sex
couples, particularly monetary ones such as a prohibition on joint tax
filings and restrictions on insurance benefits. But most are probably
unaware of a nuance that could tear at the very fabric of
relationships: lack of recognition of spousal testimonial privileges,
in particular the right not to testify against a spouse and the right
to keep marital secrets.
Some privileges are well-known and universally recognized in American
jurisdictions, such as the right not to testify against oneself and
the attorney-client privilege. Perhaps less-known are the spousal
privileges which take different forms in various jurisdictions.
Privileges are an expression of public policy, policy so strong we're
willing to risk criminals running free and civil liability of
unknowable dimensions. And we protect the sanctity of a married
couple's secret-telling, recognizing that it is fundamental to
organized American society. In many jurisdictions, therefore, spouses
are not obligated to testify against one another. In others,
confidences shared between spouses are protected, even if one spouse
is on the witness stand. In many, both privileges exist. Not so for
same-sex couples, in most states and definitely in federal court.
Importantly, federal evidence law defers to state law on privileges,
unlike other evidentiary rules. But not the spousal privilege, not
anymore. Instead, DOMA governs, limiting recognition to only
opposite-sex marriages, despite state law to the contrary.
In doing so, DOMA undermines the fabric of same-sex relationships.
Sharing confidences is one of the most important aspects of
monogamous, long-term, loving, stable, relationships. It's much of the
glue that unites a couple. This is as true of same-sex couples as it
is of those of opposite sexes.
DOMA attacks same-sex couples in the pocketbook, yes, but even more
important, it attacks them at home. In the kitchen, on the way home
from work, between classes, watching television, at the gym, in the
bedroom, on vacation. In times of celebration, and in times of sorrow.
When you need a confidant, can you trust that your secrets are safe
with your partner? Not if you're lesbian or gay. Even if your state
recognizes your marriage, your secrets aren't safe. You can't keep
your partner's secrets in a court of law. That sounds like
second-class citizenship to me. Put my partner on the stand -- he'll tell
you. He'll have no choice.