20 Comments on “An Interesting Condundrum”

1. For crying out loud, this was a Law & Order episode last year, putting Jack in the difficult position of having to argue against same-sex marriage rights in order to get the testimony he needed to convict the killer. Except that in the episode, the guys had actually gone and gotten themselves married in New Paltz when that mayor was doing gay weddings left and right.

2. There is a nice conflict here, between:

   Not married; and
   Not legally allowed to marry but would have married but for the legal prohibition.

   And then there’s “denial of equal protection of the law”, which makes the whole issue a Constitutional one.

   So, saying “they’re not married and that’s that” is ignoring the whole issue of having been forbidden to.

   A government of a free people is generally disallowed creation of catch-22’s like this, only I’m not so sure we have a government of a free people anymore. (I mean, I *thought* we were the good guys, and that we didn’t torture or indefinitely imprison people because those things were just plain wrong and we didn’t do them, but maybe I’m mistaken about all that), and the government is allowed to claim “you aren’t married(because we prohibited it), so too bad.

   Here’s the question from the other side of this coin: Assume a man and woman in the same situation, the same ceremony, but not in Criminal court: in Family court instead. Wife is claiming this constitutes a marriage, and that she is entitled to her share of community property, or to alimony. Would the court construe that as a valid marriage? Probably so.

   Now let’s move from family court to tax court, where the man and woman are being sued for nonpayment of a taxes. The revenooers want the court to find that they are both liable for the debt (as a married couple) even though only one incurred it (and that one claims to be broke, the house, car and sailboat belong to the other spouse/nonspouse, so can’t be seized to satisfy the taxes.) Would the court construe this as a marriage, and that both spouses are liable? Almost certainly. (See: common-law marriage)

   Is the state allowed to pick and choose like this, married under the civil law when that’s to the state’s advantage, but not married under criminal law when that’s to the state’s advantage? The answer used to be, and should be, “no”.

3. I think the guy outta burn regardless of assumed spousal protections or denial of such. Stealing money from schools?! String ’em both up and burn ’em in the city square.

4. “…This does make me glad, however, that the person to whom I’ve bound my life will not be made to testify against me in any future embezzlement cases…

   Just remember that the marital privilege belongs to the one who claims it, ie, you cannot stop your wife from testifying if that is her desire.

5. Don has pointed out the key concept — a spouse cannot be forced to testify against their will, but the defendant cannot bar spousal testimony.

   By the way, John, you are right about Nassau County not being in New York City — it is on Long Island, next to Brooklyn and Queens. As for what David said — about states being able to pick and choose — they do that all the time and always have.

6. Hey, didn’t I say not to talk about my future embezzling?!? How am I going to get away with now? Yeeesh!

7. Here’s the question from the other side of this coin: Assume a man and woman in the same situation, the same ceremony, but not in Criminal court: in Family court instead. Wife is claiming this constitutes a marriage, and that she is entitled to her share of community property, or to alimony. Would the court construe that as a valid marriage? Probably so.

   Not based just on a “a solemn religious ceremony”, at least not in most states. However most states (every one except maybe LA) has the concept of a “common law marriage”. They have some criteria that once triggered counts the same as a regular marriage. In georgia for example it is both people having a toothbrush in the same house. In other states it is representing yourselves as man and wife in public (so don’t sign into a hotel with your girlfriend as “Mr and Mrs Smith”!).

   I don’t know what NY’s common law marriages laws are though.

8. My guess: It’s going to come down to the marriage certificate. The courts here will duck the issue of whether or not they should have the spousal privilege, and simply say “you don’t have the certificate, you don’t get the privilege.” Yes, there is possibly an equal-protection issue. But the courts will duck the issue, rule against the privilege on technical grounds, and the Supreme Court will refuse to hear the case.

   K

9. It will be most interesting to see how far this goes in the courts. Personally I’m in favor of same sex marriage but I’ll be astonished if these guys are able to claim spousal protection in order to avoid testifying.

   and John, we all want to know what you’re thinking of embezzling!

10. I’m not a New York lawyer, but I can say that it is highly unlikely any judge would decide “spousal privilege” includes non-spouses. Yes, it’s unfair that the laws don’t allow same-sex couples to marry, but that’s pretty much irrelevant to the privilege. It’s for married persons, not like-married or ought-to-be-married persons. And it’s a pretty bright-line rule. The solution to the unfairness is to permit same-sex couples to marry.

    (The issue of Massachusetts marriage being legal in New York is a huge can of worms, but as they say, not the issue at hand.)

    I really am not trying to blog-pimp here, but I saw an example of this same principle in action in relation to loss of consortium, another area of the law fenced off for the married.

11. I Know little about the laws of New York State (or the United States of America for that matter).

    I am a lawyer in Ontario where the laws are somewhat similar. I remember a law school professor talking about marriage and the spousal privilidge. He talked alot about judges treating couples that behaved as if they were married as if they were legally married. Couples did not have to have the formality of a marriage to have all of the legal rights and obligations of married folks.

    There was one exception: spousal privilidge. Apparently judges disliked the concept of the spousal privilidge and felt that it was archaic. Therefore they tended to only recognize the spousal privildge in cases where there was an actual marriage ceremony recongized as such in Canada.

    I took this particular class about 18 years ago, and really haven’t followed the law on spousal privilidge; it never arises in the litigation that I practice. If the law in Ontario is what it was when I was studying this course in law school, then I suspect that a judge in Ontario would not grant the privilidge in this case.

    Of course since we have same-sex marriages in Canada, same-sex couples could invoke the spousal privilidge by going through a formal wedding ceremony.

    Cheers
    Andrew

12. I’d be surprised if they allow this testimonial privilege. BTW, New York has not allowed common law marriage since 1933. Many (most?) states no longer do; the last time I checked on this (about five years ago) only about twelve or fifteen states did so for current marriages. New York and California do not, Texas does. Ohio apparently does not recognize them if they were created sometime after the early ’90’s. Two or three other states have this same sort of time based rule.

    And while I went to law school in New York State I’m licensed to practice law in Iowa – which does allow common law marriage.

13. per wikipedia:

    All U.S. jurisdictions recognize common-law marriages where they have been validly contracted in another jurisdiction that still permits the common law contract of a marriage. Only a dozen jurisdictions, however, still permit marriages to be contracted in this way. They are: Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island and Providence Plantations, South Carolina, Texas, and Utah. Additionally, New Hampshire recognises common-law marriage solely for probate purposes.

    also (credit: wikipedia):
    Common-law marriage (or common law marriage), sometimes called informal marriage or marriage by habit and repute is, historically, a form of interpersonal status in which a man and a woman are legally married. The essential elements of a common law marriage are that a man and woman, both of whom are of legal age to contract a statutory marriage, mutually consent to live together and hold themselves out to the world as husband and wife.

    the argument being: two men vs. the “husband and wife” stereotype employed (at least by wikipedia and, one assumes, by most states). oh, this is ages old and as yet unsettled, and at the root of many of the same-sex-marriage debates of last summer.

    forbidden to marry, “man and woman” or not, i agree with the opinion that he should swing (you know, or something) for stealing from children. our schools have enough problems without anyone (gay, straight, celibate) taking money away from them…i’m in favor of any marriage so long as the participants don’t engage in illegal (or suspect) activities.

    p.s. and on the topic of letting vs. not letting, in reading the comments on your blog, i feel that those who do not have a firm grasp of the use of apostrophes, prepositions (that is, not ending sentences with such), and/or commas should be penalized in some way. but you’re the boss of this blog. (heaven knows there are worse crimes…i choose not to capitalize–a crime to some.)

14. I’m a lawyer in Ohio. The spousal tesimonial privileges (there are two of them: (1) neither spouse can be compelled to testify against the other, and (2) each spouse has the right to keep private marital communications from being introduced into evidence) fall squarely under the heading of “privacy rights”; their purpose is to protect the privacy of the marital relationship against government intrusion. (I recently published an article on the Constitutional foundations of the right of privacy.)

    I don’t know about New York law, but currently in Ohio the same-sex privilege would almost certainly not be protected — particularly since we currently have a state constitutional amendment specifically denying same-sex relationships any sort of legally recognized status. (For the record, I oppose this amendment, wrote letters to the editor before it was passed explaining why I thought it was a bad idea, voted against it when it was on the ballot, and am very much in favor of its being struck down.)

    I don’t think, though, that either our state constitutional amendment or the denial of spousal privilege to same-sex couples will pass Constitutional muster (at the federal level). There is already quite a bit of language in the landmark decision Lawrence v. Texas in support of the view that intimate same-sex relationships are every bit as deserving of privacy protections as opposite-sex ones; if that’s true, then the two spousal testimonial privileges ought to be available for same-sex couples too. For the same reasons, I think there’s an excellent Constitutional argument for legal recognition of same-sex (civil) marriages in general.

    I haven’t updated my own website for a while, but here’s a relevant page for anyone who is interested in this stuff: http://home.neo.rr.com/jsryan/writings/index.html.

15. Stripes:
    “In georgia for example it is both people having a toothbrush in the same house”

    Tell me you just made that up. At this point, I may be a polygamist!

16. Actually, this is probably my only serious misgiving about allowing group marriage: imagine sorting out the Enron mess if they wouldn’t testify against each other?

    And you can all stop shaking your heads; we’ve all paid good money for books that postulated much wierder things. Some of us have written them.

17. Actually, this is probably my only serious misgiving about allowing group marriage: imagine sorting out the Enron mess if they wouldn’t testify against each other?

    That’s a good point, but I strongly suspect that the larger the marriage, the more the testimonial privileges would be weakened. After all, if you marry everybody in your state, your expectation of privacy is correspondingly reduced.

18. Well, I am a lawyer in New York, or at least I recently was, but I don’t do family law. That being said – the current state of gay marriage in NYS is that it is not recognized under the domestic relations laws or the state constitution. That being said, the cases holding that there is not a right to same sex marriage are (mostly) under appeal. That being said, if I represented Signorelli, I would recommend that he file a motion to bar compelled testimony (or any testimony) by Tassone. The judge will rule however he/she will, and the result will immediately be appealed to to Appellate Division or Court of Appeals, depending on the fine print of NY civil procedure law (I forget whether issues like this can go straight to the COA). As far as I know, there has been no definate ruling on whether the rights guaranteed to opposite sex couples in a foreign marriage would extend to same sex couples.

    The issue here is not whether NYS will recognize same sex marriages in the state – but rather will it extend the rights guaranteed to NYS married couples to same sex couples married outside the state. We already know that it will do so for opposite sex marriages, whether the constitution of NY or domestic relations law will extend it for same sex couples is another question.

    If the ceremony was valid for same sex couples on the cruise ship (and they got a marriage certificate – if required under the laws that covered their marriage) – DOMA might come into effect, but only if Signorelli is on trial in federal court. I don’t believe it will affect a state trial.

    Interesting question though…

19. A judge who recognized a matrimonial privilege for same-sex partners in New York would be going out on a limb, although it’s not an impossible prospect.Here are the two principal reasons why I don’t think even a judge who would be inclined to recognize such a privilege (say, someone like me) would go ahead and do that:1. There is a strong tilt in law against upsetting people’s reasonable expectations, and (conversely) a reluctance to give people windfalls. A member of a gay couple in New York knows that he isn’t married to his partner, and can’t reasonably expect that his partner won’t have to testify against him if it all hits the fan. It would be a totally different deal if, hypothetically, they were married but the New York legislature had suddenly invalidated the marriage.2. What law dorks call “administrability.” 99.99% of the time, we know whether people are married to each other, ’cause we can check at city hall if we really need to. Figuring out whether two people are really lurrrve each other enough to count as married is not really something courts want to be in the business of doing.

20. In regards to #2 – I would assume that the courts would require a marriage certificate from the out of state jurisdiction – or other proof that according to the laws of that jurisdicition that they were common law married. Luuurrvve is not something courts know anything about.