By Roger Roots, founder, Lysander Spooner University

The law means nothing; the State’s keys must unlock all doors.

Using arguments from the feminist movement, the New Mexico Supreme Court summarily struck down the spouse privilege on August 30, 2019 in a case entitled State v. Gutierrez. The Court did so without consultation with its own rule-making committees, and without much warning to the legal community, the parties or even the attorneys in the case. (The Court, mindful that its abrupt rewrite of New Mexico’s evidence code during a pending case violates long-settled principles of due process, declared that the ruling was “prospective”—for future purposes only—and did not apply to Gutierrez (whose conviction and life sentence for murder were upheld).)

The spousal privilege—like the attorney/client privilege, the priest/penitent privilege and the doctor/patient privilege—protects people’s most intimate and personal communications from the otherwise all-seeing eye of the state. Such common law evidentiary exclusions were established eons ago—when courts in the English common law system enshrined certain social institutions as having greater value than the value of governments knowing everything about everyone.

For more than three centuries, the spousal privilege was recognized in all English common law jurisdictions. Thus, courts in New Zealand, Canada, Australia, and the United States all forbade prosecutors (and in many circumstances, civil-case opponents) from subpoenaing the husband or wife of a defendant and forcing him or her to be a witness against his or her spouse.

The spousal privilege existed as a rule of evidence since at least 1628, when Lord Coke wrote that a husband and wife are two souls in one flesh, “and it might be a cause of implacable discord and dissention betweene the husband and the wife, and a meanse of great inconvenience.” Thus the privilege pre-dates the American Constitution by at least a century and a half. As the law became increasingly published and codified, every Anglo-American jurisdiction added the privilege to its own statutes and rules of evidence (as did New Mexico).

Gradually, however, the privilege has been whittled away by court decisions. At common law, the husband or wife of a party in a case was not competent to give evidence for or against his or her spouse (so could not do so even voluntarily)—in either criminal or civil cases. But by the twentieth century, many courts allowed spouses to voluntarily testify against their spouses in civil cases. And increasingly, spouses could be compelled by courts to do so in proceedings actually brought by the other spouse, over matters of adultery or marital disputes.
In criminal cases, until recent decades, the common law long held that husbands or wives were not competent to give evidence against their spouses (i.e. for the prosecution), subject to the one exception that a spouse could give such evidence where his or her other half was accused of personal violence against him or her.

The long legacy of the spousal privilege was summarily brushed aside by New Mexico’s Chief Justice Judith Nakamura. Writing for the majority in Gutierrez, the Chief Justice cited feminist scholars who attacked the rule’s longevity as a “source of scorn rather than admiration” and derided these “sentimental relics” as patently incompatible with the modern and “changed social context” of present society.

Despite drastic changes in law and society since Blackstone’s day, “the spousal communication privilege perpetuates the role of male domination in the marriage because a husband usually invokes the privilege to prevent his wife’s disclosure of confidential communications, thereby benefitting men more often than women.” … “[I]n practice, marital privileges are more likely to protect male confidences than female confidences” and [there is] evidence that indicates that ninety percent of spousal privilege cases involve wives testifying against husbands ….
Marital privacy, according to Chief Justice Nakamura, operates as a “mask for inequality.” “The privacy and humanistic justifications [for the rule], when closely examined, seem little more than soaring rhetoric and legally irrelevant sentimentality.” wrote Chief Justice Nakamura.

Thus, because men may be more likely than women to benefit from marital privacy, the New Mexico Supreme Court abolished a rule of evidence which had protected families from government intrusion for more than 350 years. Today, in New Mexico, husbands and wives lay naked—equally—before the state.