Implicit in Liberty: The Spousal Communications Privilege in New Mexico

In State v. Gutierrez , the New Mexico Supreme Court became the first high court in the United States to abolish the spousal communications privilege, declaring it a “procedural rule which has outlived its justification.” In doing so, the court rejected both utilitarian and humanist rationales long used to defend the privilege, departing from centuries of Anglo-American legal tradition and the practices of every other U.S. jurisdiction. This Article critically examines that decision and its constitutional, philosophical, and jurisprudential consequences. The court’s utilitarian analysis treats the privilege as an instrumentally ineffective deterrent to spousal testimony, arguing it protects communications that would occur even without its existence. But this logic, adapted from professional privileges such as attorney-client confidentiality, misunderstands the privilege’s function as a protection of personal rather than procedural integrity. Moreover, the court’s “humanistic” dismissal of marital autonomy and intimacy as mere sentiment ignores the constitutional dimensions of privacy and liberty embedded in the marriage relationship. Drawing on theorists such as Milton Regan, D.C. Schindler, and Hegel, this Article reframes the privilege not as an evidentiary anomaly, but as a legal expression of relational self-authorship—a dimension of human dignity protected by substantive due process. In response, this Article advances a normative and constitutional defense of the spousal communications privilege. It argues that the privilege safeguards a constitutionally protected sphere of intimate autonomy recognized since Griswold v. Connecticut and reaffirmed in Obergefell v. Hodges . Further, it contends that the logic underlying these cases calls not for the contraction but for the expansion of non-professional privileges to similarly profound relationships. Rather than being a sentimental relic, the spousal communications privilege is a vital legal recognition of the communal nature of personhood and an indispensable component of the administration of justice in a free society.