By Andrew C. Whitman, ACLR Featured Online Contributor

The opportunity to marry is integral to human dignity.
-  General Verrilli, Counsel for the Plaintiffs1

The spousal evidence privileges demonstrate that the state’s interest in marriage must be viewed as more than simply an interest in procreation. The Supreme Court in Obergefell v. Hodges is currently being asked whether the four states2 preventing same-sex couples to marry are violating the Equal Protection Clause of the Constitution. According to the lawyer representing the states, the state interest in promoting child-raising is sufficient to limit marriage to man-woman partnerships.3 Even beyond the intuitive squeamishness most people have about this purported interest, there are deeply ingrained features in our legal system contradicting this limited view of marriage. For example, the historical and current justifications for the marital evidentiary privileges support the plaintiffs’ arguments that marriage is about the dignity of the relationship itself. By examining the privileges, we see an example of how the interest stated in Obergefell is pretense, and why the laws should be struck down under the Equal Protection Clause.

The states’ argument against same-sex marriage stakes out an interest in promoting child-raising. During oral arguments in Obergefell, the counsel for the states, John Bursch, argued that a state could justify restricting marriage to opposite-sex couples “to encourage children to be bonded to their biological mother and father.”4 In response to a question about how allowing same-sex couples to marry could negatively influence opposite-sex couples, Bursch argued that a reasonable voter could think that limiting marriage to opposite-sex couples could cause marriages to last longer. The mechanics of this argument are as follows: a system promoting marriage as primarily supporting child-rearing could compel more couples to believe that this was their duty and responsibility, and therefore stick together longer, than a system promoting marriage as “all about emotion and commitment.”5 However, the states must wrestle with other components of their laws in tension with their stated interest.6 The marital evidence privileges, for instance, help demonstrate that the states’ interest is not reasonable.

For hundreds of years, the spousal testimonial privilege and the confidential marital communications privilege have protected the marital relationship. The two privileges are related in purpose, but have some substantial differences in what they protect.7 The marital communications privilege forbids the state to enter evidence of a confidential communication between married individuals unless both parties agree to divulge the information.8 The spousal immunity privilege allows a witness to refuse to testify against his or her spouse.9 These privileges are recognized in whole or in part in all 50 states, in D.C., and in the federal court system.10 Three of the four states represented as defendants in Obergefell—Ohio11, Michigan12, and Kentucky13—recognize both privileges, while Tennessee just protects confidential communication.

Privileges must have very persuasive policy justifications. All privileges sometimes shield criminals from the law, and they derogate from the rule that the public has a right to all evidence.14 For hundreds of years, courts and commentators have discussed the marital privileges. They exist to protect the institution of marriage—not to protect the children involved.

Writing in the early 17th Century, Lord Coke held that a wife may not testify either for or against her husband because they are two souls in one body (quia sunt duae in carna una)15 Coke was later cited in Trammel v. United States, the case formally recognizing the spousal testimonial privilege in federal courts. The Trammel court refined the Coke analysis for the modern era, stating that “[t]he modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship.”16 The court made no mention of the importance of children.

Federal courts describe the privileges as protecting marriages, not children. In United States v. Sims, the Sixth Circuit17 stressed the balancing of truth-finding with the “unique intimacy,” of marriage when recognizing a crime-fraud exception to the marital communications privilege.18 There was no mention of the interests of the children. In United States v. Lea, the Seventh Circuit stressed that the Supreme Court has extended the privilege to now-divorced couples to “fully foster this level of trust between married couples.”19 Also, no mention of children. The Third Circuit protected the marriage relationship the most, holding in Appeal of Malfitano that private marital conversation should be protected even when the couple is engaged in criminal activity together.20 According to that court, even marriages involving co-criminals are worth saving.21 It also stated that marriage could be a stabilizing influence on criminals, which might discourage future antisocial behavior.22 Nowhere does it mention children, despite the fact that the court’s policy was sentencing some children to live in criminal households.

The courts of states make similar justifications involved in this case. For example, Tennessee employs a 4-factor test to determine whether a marital communication ought to be privileged, weighing the “injury that would inure to the relation by the disclosure of the communications,”23 against the benefit of the information gathered. Kentucky’s Supreme Court has stated that the two privileges “are designed to protect and enhance the marital relationship at the expense of otherwise useful evidence.”24 It is simply beyond doubt, given the language of reasoning of federal and state courts, that the marital privileges exist to protect the married relationship itself, not the children of the relationship.

We come to the same conclusion when we look at how the privileges serve to protect parents to the occasional detriment of the children. Some children are certainly living with parents who have been protected from jail solely because the privilege exists. They are harmed when they grow up influenced by the morals, habits, and destruction caused by lawbreakers. While protecting the marital relationship might protect the child indirectly by maintaining stability in the house, it would be antithetical to our system of mass incarceration to say that we would prefer to see children live in a criminal household than in one without a parent. In any event, it is doubtful that many states would take the view that criminals should avoid prison merely because they have children to raise. All of this is further evidence that the states’ interest in the marital evidence privileges is to protect the marital relationship itself, contradicting the stated interest in Obergefeld.

The Supreme Court will be asking whether the stated government interest is legitimate. Looking at the example of marital evidence privileges, we can see that it is not. States create these privileges because they are conferring dignity on the relationships themselves. In Romer v. Evans, the Court applied rational basis review to a Colorado law discriminating on the basis of sexual orientation.25 However, in striking down the initiative, commentators26 and courts27 have noted that the court appeared to have applied rational basis review with “bite.” Even if the court adopts the lowest level of review imaginable—lower than the one it applied in Romer and Windsor—the stated interest cannot justify such discrimination. Common experience, supported by the centuries-old marital evidence privileges, support the conclusion that marriage is undeniably about more than just procreation.