A Stitch in Haste

I've previously chronicled the rather remarkable, and disheartening, erosion of some core criminal procedure liberties in the United Kingdom: double jeopardy, the hearsay rule and even jury trials. And of course we all know that there is no First Amendment in Europe.

Well, add another one to the list:

The historic legal principle that husbands and wives cannot be forced to testify against each other in court could be swept away, with ministers announcing a consultation tomorrow on the merits of such a reform.

There is particular concern in two areas. One is where an accused marries a key witness and thus silences that testimony, and the other relates to assaults on children by a parent, where the spouse is often the only witness.

Two footnotes: First, this is Scotland and not all of the U.K. Second, this version of spousal privilege is far more expansive than that enjoyed by American spouses, which only covers private communications occurring during the marriage and does not include conspiratorial criminal plotting. Still, it would be regrettable to see the entire privilege discarded in order to "close a loophole."

In any case, this story actually intersects another major thesis of my blogging and is the main point of this post:

The current criminal law that witnesses cannot be forced to give evidence against their wives or husbands, except where one is the direct victim of an offence at the hand of the other, has been extended to include civil partnerships for same-sex couples.

As I've pointed out repeatedly, marriage is not simply a "contract." It is a legal status that, in many ways, simply cannot be replicated by contract. Spousal privilege is among the most clear-cut examples of this. No private contract can possibly replicate it -- only the government can grant it.

Another example is estate law. Yes a person can (and usually should) draft a will (not a costless undertaking, incidentally) specifying how one's estate is to be distributed. But there are two complications:

1. Elective share, the law (in most states) that says you cannot completely disinherit a spouse.
2. The law of intestacy: You should have a will. But what if you don't?

Both of these longstanding legal provisions are strongly biased in favor of spouses (or, in enlightened regimes, spousal equivalents such as registered domestic partners).

So the question for the "government should get out of the marriage business" crowd is: Are you suggesting that spousal privilege is invariably and facially wrong as a legal concept? Should "government get out of the testimonial privilege business" too?

And is elective share an affront to your libertarian sensibilities as well? Why exactly?

And how, exactly, is the government supposed to "get out of the intestacy business"? Intestacy is by definition the government's business. What would the anti-marriage libertarians replace it with? Would they force people, by law, to draft wills? Threaten the intestate with summary escheat of their estates? Are those libertarian propositions?

As I've blogged previously:

The real meaning of marriage in modern society -- automatic property rights, automatic inheritance rights, automatic child custody rights, automatic healthcare rights, automatic decision-making rights of all kinds, these all derive not from some abstract "bundle of contracts" concept of marriage, but from the legal status concept.

The government cannot "get out of the governing business." Which is why it cannot "get out of the marriage business."

(Via Fark.)

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Just draw up contracts?

[Eric and Crispin] had made for one another all the necessary legal arrangements: powers of attorney, mutual wills, etc etc. All their bases were covered, so they thought. As soon as he heard the news [of Eric's death], Crispin had flown straight out to Provincetown, where Eric died, to make funeral arrangements. A friend who accompanied them said that when Crispin began to detail the requirements for the cremation and commitment at the funeral home in Provincetown, the funeral director drew himself up and demanded to know what the basis of their relationship was. He told Crispin: “I don’t believe you will be making the funeral arrangements”. It required the intervention of [gay rights] lawyers and lawyer friends on both coasts to convince the funeral home that he was indeed authorized as a legal partner to make the arrangements. Crispin requested an autopsy, which was contested by the Medical Examiner on the same grounds, and the cremation was subsequently questioned as well (they called during the funeral to argue the case with Crispin).

I remember in Agency & Partnership class in law school when the professor explained that banks invariably try to (illegally) refuse to honor powers of attorney unless they are on the bank's own forms. And that's not even factoring in any anti-gay bigotry.

Can you imagine such incidents occurring everywhere, with everyone, every time? That's what would happen if government "got out of the marriage business."

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Embedded deep down in this unrelated (and lengthy) post today, ueber-blogger Glenn Greenwald discusses his attempt to litigate for same-sex spousal privilege in New York State, a decade before the same-sex marriage defeat in Hernandez v. Robles. [Scroll down to "My Sexual Orientation."]