How Obergefell Impacted the Marital Communications Privilege for Same-Sex Spouses

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Date: Summer 2018
From: American Journal of Family Law(Vol. 32, Issue 2)
Publisher: Aspen Publishers, Inc.
Document Type: Article
Length: 3,562 words
Lexile Measure: 1820L

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On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges (1) that the Fourteenth Amendment to the United States Constitution requires states to issue marriage licenses to two people of the same sex and to recognize the validity of marriages between two people of the same sex who were legally married outside of that state. One of the four principles on which the Court based its ruling is the reality that states make marriage a fundamental facet of our society by placing marriage at the center of many aspects of our legal and social system. (2) Since there are no differences between same-sex and opposite-sex couples in these legal and societal settings, there is no basis for denying same-sex couples the many benefits opposite-sex married couples are granted by the states. The Court further stated that to refuse to allow same-sex couples the right to participate in the institution of marriage is demeaning. (3)

One of the benefits that married couples enjoy is the marital communication privilege, or spousal communication privilege, which is the right not to testify against one's spouse in a court proceeding. When same-sex couples were denied the right to marry, they were not allowed to invoke the marital privilege when called to testify against their partners. This article explores how the issue of spousal communication privilege was treated throughout the United States prior to Obergefell, what changed after Obergefell, and what remained the same as before.


Prior to the Obergefell ruling, America had a hodge-podge of laws that governed the rights of same-sex couples to form legal relationships with each other. Some states allowed same-sex marriages. Other states allowed various forms of marriage alternatives, such as domestic partnerships and civil unions. The remaining states did not allow same-sex marriages or same-sex marriage alternatives.

There was no uniformity among the states as to what rights or privileges people in same-sex marriages or marriage alternatives enjoyed relative to opposite-sex married couples. To further compound the chaos, when a same-sex couple moved from the state where they had legally entered into a same-sex marriage or marriage alternative, they had no guarantee that their new state would honor their legal relationship or extend them the same rights and privileges they had enjoyed in their previous state.

Burden of Proof

Before 2015, the same-sex marriage spouse asserting the privilege had to prove that their marriage was considered valid and legal in the state in which they sought to exercise the privilege. If a homosexual couple legally married in one state, then moved to a state that did not recognize same-sex marriages, they could--before 2015--lose their marital status and marital privileges in that second state. Although states would often honor the decisions of other states on other legal matters pertaining to families of opposite-sex couples, such as child custody or support, many states before 2015 refused to recognize same-sex marriages that had taken place in states where these marriages were legal.

Married couples have the...

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Gale Document Number: GALE|A541787097