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In the debate over gay marriage, rhetoric has obscured a practical issue: Important rights that heterosexual married couples take for granted are denied to same-sex partners. As the federal government and the states consider valid marriages or other unions between same-sex partners, they must also ask which, if any, marital benefits should be afforded those couples. Among the rights at stake is the marital-communications evidentiary privilege that protects confidential communications made between spouses in a valid marriage. Testimonial privileges allow otherwise admissible evidence to be excluded in order to further policy goals that society, in certain situations, values more highly than truth-seeking. Some of these policy goals are utilitarian. For example, the marital-communications privilege allows spouses to share confidences with each other that they otherwise might not, thus enabling them to form and strengthen their relationship. The privilege also makes it less likely that they will be forced to lie in order to protect each other, thus fostering the reliability and integrity of the legal process. Other goals are humanistic. The privilege avoids what commentators have called the “morally repellent” prospect of asking one spouse to reveal the other’s confidences. Indeed, the privilege was recognized by early English courts, which considered a spouse’s testimony to be a betrayal of the relationship. The privilege also protects citizens from state intrusion into the areas of privacy, autonomy and choice, which are hallmarks of a liberal democracy. When the federal common law of evidence was codified as the Federal Rules of Evidence in 1973, privileges proved the most contentious issue. Early drafts of the rules identified specific privileges; the final rules recognize no specific privilege but instead grant federal courts the authority to recognize new privileges or to extend the scope of existing ones. Courts have used that authority, for example, to extend the scope of the physician-patient privilege. But no federal court has addressed extending the marital-communications privilege to same-sex partners. A handful of state courts, though, have addressed the issue. The Massachusetts Supreme Judicial Court ruled in 2003 in Goodridge v. Dep’t of Public Health that same-sex partners have the right to marry under the state’s constitution. The court specifically noted that the “benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death” and include “evidentiary rights, such as the prohibition against spouses testifying against one another about their private conversations.” Ten years before Goodridge, the state of Hawaii, in Baehr v. Lewin, had become the first state to recognize that same-sex marriage would grant to same-sex partners “the benefit of the spousal privilege.” In 1998, however, the state passed an amendment to its constitution prohibiting same-sex marriage, forcing the Hawaii Supreme Court, in Baehr v. Miike, to reverse its 1993 decision. Since then, the Hawaii courts have not directly addressed the question of which rights, including the evidentiary privilege, attach to same-sex partners in relationships other than marriage. On the other end of the spectrum, two New York courts have refused to recognize the privilege for same-sex partners. In 1997, in Greenwald v. H&P 29th Street Assoc., a New York intermediate appellate court refused to extend the protection of the state’s statutory marital privilege to same-sex couples because the statute “by its terms, protects confidential communications between a ‘husband’ and ‘wife’ ‘during marriage.’ “ And last year, Rosie O’Donnell famously asserted the privilege in her New York state court litigation against her publisher, Gruner + Jahr. O’Donnell asked the court to apply the spousal privilege to protect the content of letters between her and her partner, Kelli Carpenter. Relying on Greenwald, the court refused to recognize the privilege. O’Donnell later explained that she decided during the trial to marry her partner because, “We applied for spousal privilege and were denied it by the state. As a result, everything that I said to Kelli, every letter that I wrote her, every e-mail, every correspondence and conversation was entered into the record.” Two state legislatures also have addressed the issue. In 1999, Vermont passed the Civil Unions Act, which grants to civil-union participants the protection of “laws relating to immunity from compelled testimony and the marital communications privilege.” In 2003, California passed the Domestic Partner Rights and Responsibilities Act, which also extends the privilege to same-sex partnerships. VALID POLICY GOALS The same policy goals that are served by the federal marital-communications privilege would be served by extending the protection of that privilege to confidential communications between same-sex partners. From a utilitarian perspective, the privilege will enable people to pursue same-sex partnerships, enable those partnerships to be as rich as possible and avoid any risk that same-sex partners might be forced to lie to protect each other. From a humanistic perspective, the privilege will recognize that privacy, autonomy and choice hold the same value for same-sex partners as for heterosexual partners and that refusing to recognize that basic truth is “morally repellent.” The marital-communications privilege is one of a plethora of individual benefits which, in toto, weave the fabric that constitutes full participation in a liberal democracy. As a matter of sound public policy and civil rights, the federal courts ought not deny that full participation to same-sex partners. Kyhm Penfil is a partner at Call, Jensen & Ferrell (www.calljensen.com/) in Newport Beach, Calif., where she focuses on complex business litigation in state and federal courts. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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