Same-Sex Marriages and the Federal Spousal Privileges

Abstract

Recent developments in the marriage laws of Massachusetts, Vermont, Connecticut, Iowa, Maine, and California now allow, or in the latter case briefly allowed, same-sex couples to enter into marriages that are valid under state law in unqualified parity with opposite-sex marriages. Although no federal court has yet addressed the question, these changes in the law of marriage raise the issue, among many others, of the applicability of the spousal privileges to same-sex couples under Federal Rule of Evidence 501 and the federal Defense of Marriage Act. This Comment will briefly review the history of the spousal privileges and discuss their applicability in the federal courts under Rule 501, the role of federal common law in applying the privileges, and the text and purposes of the Defense of Marriage Act. Finally, this Comment will analyze the choice of law question that arises when applying the spousal privileges to same-sex couples in federal courts and offer an argument for answering that question.

Keywords: same-sex marriage, spousal immunity privileges, defense of marriage, rules of evidence