Kentucky same-sex case to be landmark

Jason Riley | The (Louisville, Ky.) Courier-Journal

Prosecutors say Geneva Case heard her spouse admit to killing a man two years ago and saw her clean blood out of the man's van and abandon it in Southern Indiana.

Now, they argue, Case must testify about those facts, even though Kentucky law exempts spouses from being compelled to testify against each other.

The reason, they say, is that Case and the defendant, Bobbie Joe Clary, entered into a same-sex civil union in Vermont in 2004 — and Kentucky does not t recognize same-sex civil unions or marriages.

"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.

"It is going to have a huge impact," Angela Elleman, an attorney for Clary, said in an interview, noting that couples are leaving the state to marry and coming back with legal issues that are going to have to be resolved.

"It's going to come up again and again and again," she said.

Kentucky voters amended the state constitution in 2004 to say that "only a marriage between one man and one woman shall be valid or recognized as a marriage."

Similar language passed as an amendment to the California Constitution in 2008. The amendment, known as Proposition 8, has been struck down by a federal appeals court. In what could be a sweeping case, the U.S. Supreme Court is expected to issue its verdict on the legality of the California gay-marriage ban soon.

Elleman said the Supreme Court ruling could affect the case here, including striking down Kentucky's constitutional amendment, but it's unclear when the high court will rule. And Jefferson Circuit Court Judge Susan Schultz Gibson has said she is not waiting for the Supreme Court decision. She has set a July 30 hearing date.

Elleman and her co-counsel, Michael Ferraraccio, argue the Kentucky amendment is unconstitutional. Clary and Case, they say, are being discriminated against because of their gender and sexual orientation.

"The right to marry, including the right to marry whom one chooses, is a fundamental right firmly entrenched in American culture and in constitutional law," Elleman and Ferraraccio argued in a motion. "Kentucky apparently recognizes that convicted felons have a protected right to marry, yet law-abiding homosexuals are denied legal recognition of their marriage."

Assistant Commonwealth's Attorney Stacy Grieve said the office is not trying to make a statement against gay marriage, just follow state law and let the jury hear from a "witness with essential information concerning" the murder.

"Our position is that Ms. Case and Ms. Clary are not in a valid marriage under Kentucky law," Grieve said in an interview. "The murder happened here and we have to follow the laws of Kentucky."

Case did not return a phone message left through Elleman. Elleman told Judge Gibson on June 6 that Case was looking for an attorney who would be willing to represent her, for free, in her fight not to testify.

Clary is charged in the Oct. 29, 2011, murder and robbery of George Murphy, accused of fatally wounding Murphy with a blunt object in his Portland home. Clary is claiming self-defense, saying that Murphy, 64, was raping her and she fought back by hitting him in the head with a hammer.

The prosecution says Clary admitted her guilt to Case, who also allegedly saw Clary clean blood out of Murphy's van and abandon it in Southern Indiana.

But Case has told the prosecution she will not testify, invoking the "Husband-Wife" privilege under state law, where a spouse can refuse to testify as to events occurring after the date of their marriage, according to court records.

Case and Clary entered into a civil union in December 2004 in Vermont, though they were estranged and living apart at the time Clary was indicted. Elleman said Vermont, which allowed civil unions starting in 2000 and gay marriage in 2009, retroactively considers civil unions the same as marriages.

In the June 6 hearing, Gibson said she didn't "recall dealing with this issue certainly in this state." And both prosecutors and defense attorneys say it's a first for Kentucky.

The state Court of Appeals ruled in 2008 that people in a same sex relationship do not have the privileges and protections of marriage, calling it a "legal fiction" to give "equal protection, equal rights, to gay couples."

Defense attorneys for Clary note that the two women involved in that case — one of whom was trying to adopt the other woman's child — did not claim to be married or in a civil union.

Prosecutors have asked Gibson to refuse to recognize Case's claim of spousal privilege and order her to testify. A court hearing has been set for July 30.

Clary's attorneys argue that the civil union Clary and Case entered into was designed to give them all the rights, benefits and responsibilities of a married couple.

And they say there has been a significant shift in favor of recognizing same sex relationships, with more than 20 states providing "significant state-level relationship protections," according to a court motion.

Elleman notes that other states, like New Mexico, don't perform same-sex marriages, but recognize them for all the privileges, rights that are granted to heterosexual. married couples.

The defense asks Gibson to "find that the government has no legitimate or important governmental interest to be served by the failure to recognize the Clary/Case marriage."

Susan Sommer, director of constitutional litigation at gay and lesbian rights organization Lambda Legal in New York, said there have been different outcomes across the country on the issue.

For example, in 2011, according to an Associated Press story, a Maryland judge ruled that a woman who married her lesbian partner in Washington, D.C., could invoke her right not to testify against her in a domestic assault case.

The judge ruled that Maryland generally recognizes a marriage as valid as long as it was valid in the jurisdiction in which it took place. Maryland's law legalizing same-sex marriage took effect in January.

Other courts, Sommer said, have ruled that the marriage has to be allowed in that particular state to provide the spousal privilege.

"This is very much about the privacy of the relationship between the two spouses and the importance of the state not piercing that relationship," she said. "Their relationship is the same for all the purposes and why we have these privileges in the first place."