How Does Spousal Privilege Apply to Gay Marriage?

The recent endorsement of same-sex marriage by a few states is raising some unexpected but inevitable legal issues. Specifically, the Volokh Conspiracy points out that courts now need to grapple with the effects of same-sex marriage on civil litigation and criminal trials. To wit, do the confidentiality provisions for spouses shield same-sex partners from having to testify against one another? Complicating the matter is the interaction between statutes and common law principles as well as the interaction between state and federal law. For those who don’t know (including our European readers, many of whom would be completely unfamiliar with a common-law legal system), statutes are laws created by legislatures and applied by the courts through a process of interpreting their text and underlying principles. Common law principles are creations of courts, based on lines of precedent that draw on previous decisions and doctrines of interpretation going back in some cases hundreds of years. When in conflict, statutes override common law, for the simple reason that any product of a legislature is more democratic and legitimate than a creation of a court. With regards to state and federal law, under the Supremacy Clause of the United States Constitution as well as many interpretations of other Constitutional clauses, federal law trumps any state laws that are in conflict provided (and this is important) that the provision relates to an area of law not reserved to the states. With the exception of criminal acts that cross state lines and a few provisions relating to national security or other narrow federal interest, most criminal laws are exclusively matters for the states. Most civil lawsuits are usually also governed by state laws, even when pursued in a federal court due for jurisdictional reasons. (Yes, this means that federal courts are often called upon to apply state laws.) Full Story from the Poll Gazette: http://www.poligazette.com/2009/11/01/conflicting-approaches-to-same-sex-marriage-raise-legal-issues/

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