University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Commonwealth v. Clary PB-KY-0003
Docket / Court 11-CR-3329 ( State Court )
State/Territory Kentucky
Case Type(s) Public Benefits / Government Services
Special Collection Same-Sex Marriage
Case Summary
The defendant was charged with the October 29, 2011, murder of a 64-year-old man, who died from head trauma after being struck with a blunt object. The defendant was also charged with first-degree robbery and tampering with physical evidence and sentenced at the State court of Kentucky. The case ... read more >
The defendant was charged with the October 29, 2011, murder of a 64-year-old man, who died from head trauma after being struck with a blunt object. The defendant was also charged with first-degree robbery and tampering with physical evidence and sentenced at the State court of Kentucky. The case was assigned to Judge Susan Schultz-Gibson. The defendant was represented by a private attorney.

The defendant claimed that she was raped by the victim and hit him in the head with a hammer as self-defense. The government alleged that shortly after the murder, the defendant called her civil union partner. According to the government, the defendant's partner had heard the defendant admit to the murder, and helped obtain products to clean the blood from the van.

In 2013, the defendant's partner was subpoenaed to testify against the defendant although spouses were exempt from testifying against each other in court under the “Husband-wife privilege.” While the couple had held a civil union ceremony on December 3, 2004, in Vermont, Kentucky deemed same-sex unions unconstitutional in November 2004 through the Kentucky Constitutional Amendment 1, which was approved by 75% of the voters. The defendant filed to invoke marital privilege and quash the subpoena on July 23, 2013, claiming that Kentucky’s failure to recognize their union from Vermont as marriage violated the U.S. Constitution's due process clause.

However, the court found that the couple did not have a valid marriage in both Kentucky and Vermont. Kentucky did not allow same-sex unions or recognize same-sex unions from other states and countries as valid. Therefore, the defendant’s civil union did not invoke marital status or its privileges in Kentucky. In Vermont, civil unions enjoyed the same state rights and benefits as heterosexual marriages. However, they were characterized as “separate but unequal” as those rights did not transfer outside of the state. Vermont amended this through legalization of same-sex marriage in 2009, intended to issue marriage licenses retroactively available for those already in a civil union. However, the legislation did not automatically convert civil unions to marriages under law and required parties to apply for a marriage license or solemnize their marriage. The defendant, who had not taken such actions, remained in a civil union instead of a legal marriage. On September 23, 2013, Judge Gibson denied the motion to invoke marital privilege and ordered the defendant's partner to testify against her. A jury trial was scheduled to begin on February 7, 2014.

The defendant pled guilty on January 14, 2014, for the murder as well as robbery and tampering with physical evidence. She was sentenced to 40 years in prison for the murder charge, 20 years for robbery and 5 years for tampering with evidence. The defendant was also eligible for parole in less than 20 years.

As part of the deal, the government attorney’s office dropped a shoplifting charge the defendant faced before the murder charge. Had a plea not taken place, and the defendant found guilty on February 7, 2014, she would have been eligible for the death penalty.

On February 12, 2014, Judge John G. Heyburn in Bourke v. Beshear ruled in favor of same-sex marriage and found that Kentucky must recognize same-sex marriages from other jurisdictions under the equal protection clause of the US Constitution.

The case is now closed.

Averyn Lee - 04/11/2019


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Discrimination-basis
Sexual orientatation
General
Gay/lesbian/transgender
Marriage
Plaintiff Type
State Plaintiff
Causes of Action State law
Defendant(s) Bobbie Joe Clary
Plaintiff Description A criminal defendant in a same-sex civil union relationship.
Class action status sought No
Class action status granted No
Filed Pro Se Unknown
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Criminal Conviction
Source of Relief Litigation
Filing Year 2011
Case Closing Year 2014
Case Ongoing No
Additional Resources
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  Lesbian May Be Forced to Testify Against Wife
https://abcnews.go.com/US/lesbian-woman-forced-testify-wifes-murder-trial/story?id=19828792
Date: Aug. 1, 2013
By: COLLEEN CURRY (ABC News)
[ Detail ]

Docket(s)
No docket sheet currently in the collection
General Documents
Order
PB-KY-0003-0001.pdf | Detail
Date: 09/23/2013
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Judges Gibson, Susan Schultz Court not on record show/hide docs
PB-KY-0003-0001

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