Marriage as a Restriction on Government

[idiom]

The following are a few posts on Spousal Privelege I made in a decrepit thread in Hot Topics.

[idiom]

isn't that part of the 5th Amendment notion where one cannot testify against himself?

Same idea but it is only extended to married couples, there are two seperate priveleges:


The marital confidences privilege
The marital confidences privilege is a form of privileged communication protecting the contents of confidential communications between husband and wife. This privilege applies in civil and criminal cases. When applied, a court may not compel one spouse to testify against the other concerning confidential communications made during marriage.

The privilege generally applies only where both of the following fact situations are present: (1) a third party was not present during the communication (the presence of a third party would destroy the confidential nature of the communication), and (2) both parties intended that the communication be confidential.

The privilege is usually restricted to confidential communications made during marriage and does not include communications made before the marriage or after divorce. The privilege does, however, generally survive the divorce; that is, a person can be prevented from testifying about confidential communications with an ex-spouse made during the marriage.

Either spouse can invoke this privilege, either refusing to testify against their spouse or preventing their spouse from testifying. Finally, courts may require that the communication relate specifically to the marriage.


The spousal testimonial privilege
The spousal testimonial privilege (a.k.a. "spousal immunity") can be used to prevent any party in a criminal case from calling the defendant's spouse to testify against the defendant about any topic. Under the U.S. Federal Rules of Evidence, this privilege attaches to the witness spouse; that is, the defendant's spouse can refuse to testify against the defendant, but the defendant may not prevent his spouse from testifying against him or her.

This privilege does not survive the marriage; that is, after divorce, there is no right to refuse to testify against a defendant ex-spouse. This privilege may be restricted to testimony about events that occurred after the marriage, although in some jurisdictions it may apply to testimony about events occurring prior to the marriage.


I find this a curious item regarding marriage, as it makes a legal marriage about more than 'just taxes and property'. It actaully restricts the governments power over a family unit.

Presently gay and polygamous couples are not afforded this protection which is unreasonable.

Actually Polygamy was denied this right by the Edmunds–Tucker Act of 1887 (http://en.wikipedia.org/wiki/Edmunds%E2%80%93Tucker_Act)which was repealed in 1978, so maybe polygamists are protected?

At any rate I don't see why giving gay couples the same protection should be such a hang up. (Except then you don't have any witnesses to the sodomy).

It is however an important aspect of restriction on government that I think is largely overlooked and under discussed around here. The legal precedent being that the government is further restricted with regards to family units.

As far as I can see, these restrictions on government are unique to the United States. If any one can find similar things else it would be helpful. Also these are not Federal, they vary by state.

[idiom]

LexisNexis (http://www.lexisnexis.com/lawschool/study/outlines/html/evid/evid39.htm) adds a few Caveats:


[D] Exceptions
If the charged offense involves a crime against the other spouse or their children, the privilege typically does not apply. Moreover, some federal courts have engrafted a "joint participant" in crime exception onto the common law privilege.



§ 39.04 Parent-Child Privilege [581-82]
Although some courts and legislatures have recognized a parent-child privilege, most have not.


If you are going to pass a law or an amendment at the federal level about marriage (or even at the state level) it would be a good idea to beef these restrictions on the Government up a bit. Like "the protections of the Fifth Amendment are extended to all members of a civil union in the nature of marriage. Further, communications between members of the union or their children is considered priveleged" or some such.

[idiom]

I was all for removing the government totally from marriage before the Spousal Privelege occured to me.

In New Zealand all the rights of a civil union apply to you if you have been more or less living together for three years, whether you want them to or not. Such an automatic system might be applied to spousal privelege if you wanted to remove marriage licensing from the states and the Fed.

[bill50]

Anyone has the right to refuse to testify against anyone. This isn't a matter of marriage.

[nate895]

Spousal Privilege has been a part of common law since its inception, and in fact it doesn't go as far as it used to. There is no reason to suspect that in a libertarian society (one that would get government out of marriage) that the spousal privilege would not extend to those who protect themselves through a private marriage contract.

[idiom]

What would define a private marriage contract and give it a mystical superiority to Subpoena power that other contracts would not have? Who do you make those contracts available to? Who decides this?

[idiom]

Anyone has the right to refuse to testify against anyone. This isn't a matter of marriage.

The whole point of the fifth amendment is that, except against yourself, you are subject to subpoena and even then a Grand Jury can still subpoena you.

Without subpoenas it is very hard to have a fair trial.

[nate895]

What would define a private marriage contract and give it a mystical superiority to Subpoena power that other contracts would not have? Who do you make those contracts available to? Who decides this?

Common law judges, who are bound to use common law precedent. They didn't screw up very much when the government wasn't involved, why should we expect them to screw up this time, assuming this is a libertarian society.

[nate895]

The whole point of the fifth amendment is that, except against yourself, you are subject to subpoena and even then a Grand Jury can still subpoena you.

Without subpoenas it is very hard to have a fair trial.

The state would have to be able to mystically prove the negative that you would not incriminate yourself. You can use the fifth amendment whenever you are called as a witness and they can't really question you because the state needs to prove its case.

[idiom]

Well apart from it not being part of common law I would generally assume that to be the case. However it only matters if you can force people to show up at court.

[bill50]

http://www.youtube.com/watch?v=6wXkI4t7nuc&feature=related