The California Supreme Court has ruled that a statutory ban on same-sex marriages is unconstitutional because it denies people desiring such a union equal treatment under the law.

I’m still at a loss trying to figure out why the opponents to same-sex marriage decry these unions, saying over and over again that this will destroy the institution of marriage. They don’t ever explain why, and as I see it what destroys marriages is divorce.

Though it hasn’t been talked about much (if at all), one of the benefits of a legal marriage is that spouse A may not be compelled to testify against spouse B. Thus, if a wife watches a husband rob a bank the prosecution may not make her testify, nor may her refusal to testify be held against the accused.

So here’s what I’m waiting for:

Diane and Joanie, legally married in Massachusetts, are in say Utah when Diane is accused of murder. The prosecution believes that Diane has confessed to Joanie and they call Diane to testify. Diane refuses to testify, claiming her legal right not to be compelled to testify against her spouse.

Utah refuses to recognize the validity of the marriage and throws Diane in jail for contempt of court and she appeals, claiming that the Constitution of the United States requires that each state give full faith and credit to the laws of other states (Constitution, Article IV, Section 1) and therefore the State of Utah must allow Diane to refuse to testify against Joanie without penalty.

Put another way, suppose Dave and Rachel marry at the age of 15 in a state that allows such marriage. They then immediately move to a state which requires persons entering into marriage to be at least 18. Is the marriage void for the purposes of compelling testimony?

If you answer yes to that question but answer no to the question of whether Diane has the right to refuse to testify, you are, in my opinion, doing so on very shaky legal grounds.

As I’ve pointed out before, we must look carefully at what history has to offer on this. At one time (particularly under English law) there was a distinct difference between legal (secular) marriage and a wedding of two people under the auspices of a religion. Most royal marriages consisted of these two parts, and they were completely separate from one another.

A modern-day example, fairly timely, is the relationship between men and women at the Yearning For Zion Ranch in Eldorado, Texas. It is claimed that individual men may have as many as 15 or 20 spouses (all of the opposite sex, of course). But, to the best of my knowledge, not one of these so-called marriages have been memorialized by the filing of a marriage certificate with the local court system, which is a requirement for a legal marriage. Though the marriages are not legal, they have probably been sanctified by the church to which the couples belong. As a consequence, the state probably will not be able to prosecute any of these people for polygamy. What you have there is merely an alternative life style, unorthodox (I wish there were a better choice of word there) but certainly not illegal.

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