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LOUISVILLE, Ky. (WDRB) -- In the first ruling of its kind in Kentucky, a Jefferson Circuit Court judge has ruled that the same-sex spouse of murder defendant Bobbie Jo Clary must testify against Clary in her upcoming murder trial, even though state law exempts spouses from being compelled to testify against each other.
Judge Susan Schultz Gibson ruled Monday that it is "abundantly clear" under Kentucky law that same-sex marriages will not be recognized as valid within the state or recognized from other states, even though "the legal, social and moral landscape against which this issue is playing out is rapidly changing and progressing."
Prosecutors have argued Geneva Case heard her spouse admit to killing a man two years ago and saw her clean blood out of the man's van and abandon it in Southern Indiana.
They have argued Case must testify about those facts, even though Case and Clary entered into a same-sex civil union in Vermont in 2004 because Kentucky doesn't recognize same-sex civil unions or marriages.
Case had told the prosecution she will not testify, invoking the "Husband-Wife" privilege under state law, where a spouse can refuse to testify as to events occurring after the date of their marriage, according to court records.
Gibson ruled that in 2004, the Kentucky General Assembly, "perhaps anticipating that public opinion would one day shift in Kentucky as it has in other states," put the issue of same-sex marriage on the ballot and voters amended the state constitution to say that "only a marriage between one man and one woman shall be valid or recognized as a marriage."
Also, Gibson wrote that it is not up to her to decide "whether these Kentucky laws are constitutionally repugnant," though she noted that "the acceptance of same-sex marriage is growing and that an increasing number of citizens of this country and this state believe that extension of basic rights taken for granted by heterosexual couples to same-sex couples will not result in the destruction of civilization, but in the enrichment of it."
Gibson also argued that she didn't have to decide the constitutionality of the issue since Case and Clary are not considered married in Kentucky or Vermont.
When the couple entered into a civil union in Vermont on Dec. 3, 2004, same-sex marriage was not available, and though they were eligible for all of the same rights and benefits of a heterosexual couple in that state, those rights do not transfer to Kentucky. Case and Clary, Gibson ruled, have apparently not in recent years applied for a marriage license in Vermont.
Vermont allowed civil unions starting in 2000 and gay marriage in 2009.
Attorneys for Clary and Case have argued they are legally married and denying them the same marital rights others is a violation of the Constitution. Clary and Case, they say, are being discriminated against because of their gender and sexual orientation.
The case is the first legal test in the state over forcing same-sex partners to testify against each other.
Angela Elleman, an attorney for Clary, declined to comment.
She has argued in court records that "The right to marry, including the right to marry whom one chooses, is a fundamental right firmly entrenched in American culture and in constitutional law. Kentucky apparently recognizes that convicted felons have a protected right to marry, yet law-abiding homosexuals are denied legal recognition of their marriage."
Assistant Commonwealth's Attorney Stacy Grieve did not immediately return a phone call to her office.
Clary is charged in the Oct. 29, 2011, murder and robbery of George Murphy, accused of fatally wounding Murphy with a blunt object in his Portland home. Clary is claiming self-defense, saying that Murphy, 64, was raping her and she fought back by hitting him in the head with a hammer. The trial is scheduled for February. Clary is charged with murder, robbery and tampering with physical evidence.
Bryan Gatewood, who is representing Case, said he was disappointed in the ruling and would discuss with his client whether to appeal. He said Clary and Case were "for all intents and purposes" married and expect to be treated as a married couple.