State attorneys seek sexual history of plaintiffs in same-sex marriage lawsuit


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Attorneys defending Pennsylvania in a federal court challenge to the commonwealth's prohibition on same-sex marriage have asked for "irrelevant," highly private information about the plaintiffs, their lawyer said, including whether they engaged in previous heterosexual relationships and who the natural parents of their children are.

Witold "Vic" Walczak, the legal director for the American Civil Liberties Union of Pennsylvania, wrote in a letter to U.S. District Judge John E. Jones III Monday that the requests made as part of the ongoing federal lawsuit are beyond the scope of what is allowed in discovery and a violation of his clients' privacy rights.

Among the items requested, Mr. Walczak wrote in the letter, are documents showing "the natural parents" of both biological and adoptive children, which the lawyer noted would include any sperm donors; whether the plaintiffs were involved in any previous heterosexual relationships, and if so, the details of those; detailed information dating back 10 years for any other person with whom the plaintiffs resided; and the identification of "any and all health care providers from whom you have sought or received medical or psychological treatment or counseling for harm you have alleged to have suffered as a result of allegations" in the lawsuit. Mr. Walczak noted the complaint seeks no damages.

"Not only do these requests invade highly private and sensitive areas, none of them involve relevant information or are likely to lead to discovery of relevant information," Mr. Walczak told Judge Jones.

In his letter, Mr. Walczak also accuses the defendants of attempting to stall the litigation by refusing to meet with the plaintiffs on discovery issues.

Shortly after he filed his letter on Monday, the defendants responded with their own in which they address Mr. Walczak's allegations of trying to stall the litigation.

The administration of Gov. Tom Corbett hired attorney and former state Supreme Court justice William Lamb after Pennsylvania Attorney General Kathleen Kane refused to defend the law on behalf of the commonwealth. Mr. Corbett was originally named personally as a defendant in the case but was released Nov. 1.

Mr. Lamb wrote that the defendants were not refusing to meet on the case, but had simply been waiting until Monday, the date set by the court for responses for discovery.

"Defendants had every intention of reaching out to plaintiffs to arrange for a meeting to discuss the substance of discovery responses after those responses were submitted," Mr. Lamb wrote.

The lawyer did not address Mr. Walczak's claims regarding the improper discovery requests.

Mr. Lamb could not be reached Wednesday.

The parties had lengthy telephone conferences earlier this week, but Mr. Walczak said his concerns about his clients' privacy violations have still not been addressed.

"It's highly invasive of our clients' privacy," he said.

Tony Infanti, a law professor at the University of Pittsburgh whose research focuses on sexual orientation and the law, said the commonwealth's requests seem "intrusive" and "borderline harassing."

Mr. Infanti said asking about past heterosexual relationships might go to the equal protection claim in the lawsuit.

"The plaintiffs are asserting that sexual orientation is such a fundamental trait that people should not be required to abandon it," Mr. Infanti said. "At least with regard to the questions about past heterosexual activity, they might try to argue that this is evidence that sexual orientation is not so fundamental as they are claiming."

Still, he continued, "It's really, obviously, none of their business. Are they really going to put someone's sexual orientation on trial?"

Moreover, he added, "it's not unheard of for someone to have been in a heterosexual relationship and them come out of the closet.

"To me, it smacks a little bit of desperation. If you attack someone personally, it says you're having trouble defending the merits of the law."

In the meantime, on Tuesday, Judge Jones ruled against the commonwealth defendants in choosing not to give them permission to file an interlocutory appeal with the 3rd U.S. Circuit Court of Appeals, on their previous motion to dismiss. Judge Jones previously denied their motion, and the case is set to go to trial before him June 9.

The lawsuit, filed in July by 10 couples and one widow against state and county officials, seeks to overturn Pennsylvania's Defense of Marriage act, saying that it violates the equal protection rights of same-sex couples in Pennsylvania.


Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter @PaulaReedWard.

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