I'm definitely on board for the marital communications privilege. What you say to your spouse during the marriage should be confidential. For good reason. We want spouses to talk to each other without being worried that the information you reveal may be used against you. On it.
But what if the marriage is a sham? One you entered into solely to get various benefits; say, tax benefits, or (as here) an immigration visa. Should the privilege apply then?
My initial impression is the same as the government's: No. The marriage was a sham. There was no "real" intimate relationship that we're trying to protect. The Ninth Circuit holds that it'd be a bad idea to create a "sham marriage" exception to the privilege, so refuses to do so. I'm not so sure. Seems to me that if the marriage is indeed a sham, the underlying basis for the privilege is vitiated. At that point, you're talking about protecting communications between, essentially, strangers. Or at least no more subject to privilege than boyfriends and girlfriends, people who sleep together, close friends, etc. None of whom have a privilege. Ditto for people in sham marriages, it seems to me.
Now, admittedly, there are some line-drawing problems. People do get into marriages for a number of different reasons. The Ninth Circuit is understandably a little worried about having to figure out what marriages are intimate "enough" to justify the privilege.
But two responses seem right to me. First, we already have a "sham marriage" exception for the marital testimonial privilege -- i.e., the right not to testify against your spouse. So we already draw that line, and appropriately so. If we can do it there -- if we can say, for example, that we're not willing to let you refuse to testify against your (typically new) spouse because we know full well that you only married him to avoid testifying -- then I see no reason why we can't do it here. Second, the line-drawing argument only seems to me to justify a pretty hefty burden on establishing the exception. But when, as here, there's tons of evidence that the marriage was indeed a sham, the difficulty of determining precisely when a marriage becomes "fake" (for money, prestige, celebrity, etc. instead of for love) doesn't really apply. E.g., I may not be able to precisely define how many hairs makes a beard instead of a clean-shaven face, but I can nonetheless say with confidence that the guys from ZZ Top definitely have beards. Ditto for sham marriages, at least at the extreme. Line-drawing not a problem. Or at least not a terminal one in this setting.
One other point. The Ninth Circuit also recognizes that a different exception already exists, and one that is also potentially applicable here. The marital communication privilege doesn't apply when the marriage was already "irreconcilable" at the time the underlying statements was made. Indeed, the Ninth Circuit remands on this precise point so that the district judge can decide whether that other exception applies.
But whoa! If we can decide the totally-not-bright-line of when a marriage is "irreconcilably" broken, it seems totally possible -- easier, even -- to decide when that same marriage is a "sham" from its very outset. Plus, isn't there dispositive overlap there? 'Cause I can definitely think of one setting in which I might well call a marriage irreconcilably broken: when it was and remains a total sham.
Look, I don't like prying into reasons for someone's marriage. But when we're already doing that -- when, as here, we're seeing if they committed fraud by entering into a fake marriage for immigration purposes -- seems to me it's similarly fine from an evidentiary perspective to see if the marriage is a fake and respond accordingly. Because fake marriages don't deserve a truth-defeating privilege.
And, yeah, if that means that we eventually run the risk of having to figure out whether, say, 26-year old Anna Nicole Smith's marriage to her 89-year old billionaire husband Howard Marshall was also a "sham" -- well, we can cross that bridge when we come to it.