The ACLU is accusing the lawyers defending Pennsylvania’s law banning same-sex marriage of stalling and making undue requests for information about the plaintiffs in the lawsuit. The suit was brought by 23 plaintiffs, including 10 couples, one of the couple’s two daughters, and a same-sex widow, and according to the ACLU’s Witold Walczak, the lawyers Gov. Tom Corbett (R) hired at taxpayer expense want to know whether any of the plaintiffs previously had opposite-sex relationships or ever sought counseling:
Among the requests, said Walczak, are whether any of the plaintiffs were ever in a relationship with a person of the opposite sex and names and contact information for every person with whom they resided over the last 10 years. The state is also seeking the identity of all health care providers from whom the plaintiffs sought treatment or counseling for harm they allegedly suffered as a result of allegations in the lawsuit, Walczak wrote. […]
Other information requests by the state’s lawyers are unduly burdensome, including correspondence, letters, notes, records, reports, diaries or any other writings that pertain to the subject or events on which the lawsuit is based, Walczak wrote.
It’s unclear how this kind of personal information about the plaintiffs would be pertinent in a case about whether it’s constitutional for Pennsylvania to not recognize the marriages of same-sex couples. Details such as when they came out, whether they identify as exclusively gay (as opposed to bi), or whether or not they’ve ever struggled because of the impact of homophobia do not impact the validity of their current families. It’s possible that the $400/hour lawyers are planning to argue that the court should not consider sexual orientation with heightened scrutiny, which would require demonstrating that sexual orientation is not “immutable.” If any of the plaintiffs did, in fact, have opposite-sex partners at a previous point in life, they could try to argue that this is evidence of “change.”
When opposite-sex couples seek a marriage license, they are not required to disclose their relationship histories, prove their sexuality, or provide a history of counseling that they’ve sought. Their commitment to each other and to the families they may or may not start is all that they need to be granted the legal and financial protections guaranteed by a civil marriage.
Below is the actual letter Walczak submitted to the judge, including a recounting of Pennsylvania’s lawyers repeatedly ignoring attempts to schedule meetings with the plaintiffs. Not mentioned in the AP story among the kinds of information the lawyers are seeking is “All documents reflecting the natural parents of your biological or adoptive children.” Here’s the document (HT: Kathleen Perrin):