UNDATED (CNN) -- A woman refuses to testify against her same sex spouse in a Kentucky murder case. Prosecutors argue that Kentucky doesn't recognize same sex marriages.
Bobbie Joe Clary is accused of murder. Clary says it was self defense. She says she was being raped, fought back and hit the man on the head with a hammer. If convicted of murder, she could be sentenced to death by lethal injection. Kentucky prosecutors believe Geneva Case, knows the truth but she's refusing to testify. Why? Case says, "We're married we're just like any other couple."
Case is invoking spousal privilege. The two women were married in Vermont nearly a decade ago. But prosecutors say in Kentucky they're not like any other couple. Kentucky does not recognize same sex marriage as legal. Asst. Commonwealth's Attorney Stacy Grieve says, "Under Kentucky law a husband or a wife can refuse to testify against the other in court. Our position is that Kentucky law of the husband and wife privilege does not apply to a same sex couple."
Case's attorney Bryan Gatewood says, "Only because she's married to a woman instead they want to use that information to strap her to a gurney, to pump poison into her veins and kill her. We say that's not fair."
And the attorneys representing both women say it's not just unfair, it's unconstitutional. Clary's attorney Angela Elleman says, "They are trying to use state law which treats gay and lesbian people differently than it treats heterosexual people to their advantage in a criminal action. That I believe is unconstitutional."
But whether Geneva Case may be compelled to testify again her wife already be in the hands of another court, the U.S. Supreme Court. The high court is expected to rule Wednesday on the constitutionality of California's Proposition 8. California voters in 2008 approved a ban on same sex marriage. The women's' attorneys say, if the court strikes down prop 8 and decides its decision applies to all states, it could change the outcome of this murder case. Elleman says, "Obviously we'd love to have guidance. We'd love that guidance to be something that is helpful in Ms. Clary asserting her constitutional rights."
Prosecutors have asked the judge to order case to testify. They believe case saw her spouse clean blood out of the dead man's van and heard her admit to the killing. A hearing is scheduled the end of July.
This is the first time same sex spousal privilege has been before a Kentucky court. But the issue has come up in a few other states. In a Delaware case civil union laws there allowed for spousal privilege. The difference of course, in Kentucky, the principle doesn't extend to same sex couples.