The American court system recognizes marriage as one of the most highly regarded institutions.  More often than before, couples cohabitate without getting married, either by choice or because the law affords them no other option.  As traditional stigmas against cohabitation lessen in contemporary society, courts are more apt to recognize new rights and protections for both heterosexual and homosexual unmarried couples.  Furthermore, domestic partnerships, civil unions, and marriage create significant opportunities for homosexual couples, a group traditionally denied all marital benefits.

Courts have not yet extended the spousal privilege regarding adverse testimony and confidential communications to these nontraditional couples.  Traditionally, only a husband and wife claimed this privilege.  Recently, states such as Vermont and Massachusetts made the marital privilege available to same-sex couples in civil unions or marriages.  Yet, courts continually deny the privilege to unmarried cohabitating couples, both heterosexual and homosexual.  Courts commonly agree that such couples are not entitled to the benefit of the spousal privilege without taking on the responsibilities and duties of marriage.  The justification for this broad application fails to consider the vast number of homosexual couples who do not marry because state law prohibits it, rather than because they want to avoid the responsibilities of the institution.

This Note sets forth a proposal suggesting courts extend the spousal privilege to nontraditional couples, as determined on a case-by-case basis.  Part II examines the history of the marital privilege, its flexibility with regards to a constantly changing society, and how courts historically denied the privilege to unmarried cohabitating couples.  An exploration of changes in the institution of marriage itself suggests that the privilege’s theory that the government should protect marriage at all costs is no longer relevant.  Finally, Part II examines how, despite the recognition of gay marriage and civil unions in select states, laws such as The Defense of Marriage Act (DOMA) still impede the application of the privilege to homosexual couples, to whom courts should already guarantee the right.

Part III of this Note analyzes how changing attitudes towards cohabitation indicate courts’ potential willingness to extend more privileges and benefits to unmarried couples as a way of protecting these new family units.  Part III also examines the remaining impediments to the privilege’s extension and how these barriers lead to uncertainty regarding benefits courts should extend to such couples.  While the courts continue to deny the spousal testimony privilege to unmarried cohabitating couples, a shift in societal focus on these relationships, rather than the institution of marriage alone, suggests the spousal testimony privilege may also be applied to such couples. . . .

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