DE Court Extends Spousal Privileges to Same-Sex Couples

Theil had listed his same-sex partner, Kenneth Lanza, as a possible witness, according to court documents. Lanza and Theil were married in California in August 2008, but moved to Delaware some time later. Their California marriage was retroactively recognized in Delaware when the state's civil union legislation went into effect on Jan. 1, 2012.

Theil alleges that Lanza was present during a conversation he had with a human resources director, and also observed how the alleged discrimination affected his demeanor. Dentsply filed a subpoena seeking a list of documents it wanted Lanza to produce, including items related to personal conversations shared such as e-mails.

Spousal Testimonia Privilege

Barbara Stratton, an attorney with Knepper & Stratton, a Wilmington firm, represents Theil. She filed a motion arguing that Lanza's personal conversations with Theil were protected under spousal testimonial privilege because their California marriage was legally recognized under Delaware's civil union legislation, which automatically granted civil union status to residents who were married in other states prior to Jan. 1, 2012. However, the conversations between Lanza and Theil occurred in 2010 and 2011, prior to the establishment of civil unions in Delaware. That raised the legal question of whether spousal testimonial privilege could be applied retroactively.

Matthew F. Boyer, an attorney with Connolly Bove Lodge & Hutz of Wilmington, represents Dentsply. He did not challenge the motion, and filed a brief agreeing with Stratton's contentions. At the time of this writing, both Stratton and Boyer declined to comment, as the case was ongoing.

The Court's Stipulated Order

The court approved a stipulated order, granting retroactive spousal testimonial privileges to Lanza and Theil. Under the order, Lanza can be questioned, but he cannot be compelled to answer any questions concerning confidential conversations he had with Theil, regardless of whether they took place prior to Jan. 1. Although the order was not an opinion or even challenged by the defense counsel, many legal experts say its importance should not be underestimated.

This order is important because it applies spousal privilege even before the laws of civil unions were put into effect, said Susan Sommer, senior counsel and director of constitutional litigation for Lambda Legal, a New York gay and lesbian legal advocacy group. Lambda Legal filed an amicus brief in the case supporting Theil.

John Culhane, a professor of law and director of the Health Law Institute at Widener University, said Lanza and Theil's California marriage was key to the court's support of the retroactive acknowledgement of their relationship in Delaware. Ordinarily, any communication between a same-sex couple that took place before Jan. 1 would not count as privileged communication, he said. This is the way Judge Joseph R. Slights III expressed what he saw as a strong legislative commitment by the Delaware General Assembly to people in a same-sex relationship.

More Challenges Coming?

Although this case is the first challenge to same-sex spousal testimonial privilege in Delaware, there was a similar case in Maryland last year, according to Sommer. In that case, the court also recognized that same-sex couples should be afforded the same communication privacy protections as couples in opposite-sex marriages. However, such cases are rare, and it is not expected that many similar claims will appear in the future.

Given the statutes of limitations for claims, there is only going to be a short period of time where the issue arises, Culhane said. Sommer added that Judge Slights' order could be applied to other legal areas that have created issues for same-sex couples such as hospital visitation rights or benefits if one's partner passes away. This is an order from the court that applies the law and applies the law fully, she said. The opinion does suggest that the strength of Delaware's civil unions is a helpful legal precedent that could have application in other contexts.

It is unlikely that the court's order would be appealed because defense counsel did not object to it. However, it could face legal challenges if the issue of spousal testimonial privilege for same-sex couples appears before the court in a future case.

“I would think people on the right would jump all over this as an example of overreaching by the court,” Culhane said. “Regardless of what you think about civil unions, applying this retroactively is something you would expect them to question.”

For now, however, the order remains a victory for same-sex couples. “This helps move us toward a place where there is no question among litigants about whether same-sex communication is privileged,” Sommer said.

Jeff Mordock can be contacted at 215-557-2485 or [email protected]. This article also appeared in The Delaware Law Weekly, an ALM sister publication of this newsletter.

In the first major test of the strength of Delaware's civil union legislation, a Delaware Superior Court judge approved an order retroactively applying spousal testimonial privilege to a same-sex couple who were married in California in 2008, even though their partnership was not legally recognized in Delaware until the state's civil union law went into effect earlier this year. Spousal testimonial privilege is a benefit granted to married couples in which spouses cannot be compelled to testify against each other in a court of law regarding private conversations. Although it has been a long-standing legal standard in opposite-sex marriages, it has been an infrequent issue in same-sex marriages and civil unions but was recently challenged in Theil v. Dentsply International.

The Case

In the case, plaintiff David Theil, a gay man, sued dental supply company Dentsply International, alleging that he faced discrimination for his sexual orientation. Theil contends in his complaint that Dentsply discriminated and retaliated against him, as well as created a hostile work environment because he was gay. Dentsply, which is headquartered in York, PA, and has an office in Wilmington, DE, where Theil worked, denies the accusations.

Theil had listed his same-sex partner, Kenneth Lanza, as a possible witness, according to court documents. Lanza and Theil were married in California in August 2008, but moved to Delaware some time later. Their California marriage was retroactively recognized in Delaware when the state's civil union legislation went into effect on Jan. 1, 2012.

Theil alleges that Lanza was present during a conversation he had with a human resources director, and also observed how the alleged discrimination affected his demeanor. Dentsply filed a subpoena seeking a list of documents it wanted Lanza to produce, including items related to personal conversations shared such as e-mails.

Spousal Testimonia Privilege

Barbara Stratton, an attorney with Knepper & Stratton, a Wilmington firm, represents Theil. She filed a motion arguing that Lanza's personal conversations with Theil were protected under spousal testimonial privilege because their California marriage was legally recognized under Delaware's civil union legislation, which automatically granted civil union status to residents who were married in other states prior to Jan. 1, 2012. However, the conversations between Lanza and Theil occurred in 2010 and 2011, prior to the establishment of civil unions in Delaware. That raised the legal question of whether spousal testimonial privilege could be applied retroactively.

Matthew F. Boyer, an attorney with Connolly Bove Lodge & Hutz of Wilmington, represents Dentsply. He did not challenge the motion, and filed a brief agreeing with Stratton's contentions. At the time of this writing, both Stratton and Boyer declined to comment, as the case was ongoing.

The Court's Stipulated Order

The court approved a stipulated order, granting retroactive spousal testimonial privileges to Lanza and Theil. Under the order, Lanza can be questioned, but he cannot be compelled to answer any questions concerning confidential conversations he had with Theil, regardless of whether they took place prior to Jan. 1. Although the order was not an opinion or even challenged by the defense counsel, many legal experts say its importance should not be underestimated.

This order is important because it applies spousal privilege even before the laws of civil unions were put into effect, said Susan Sommer, senior counsel and director of constitutional litigation for Lambda Legal, a New York gay and lesbian legal advocacy group. Lambda Legal filed an amicus brief in the case supporting Theil.

John Culhane, a professor of law and director of the Health Law Institute at Widener University, said Lanza and Theil's California marriage was key to the court's support of the retroactive acknowledgement of their relationship in Delaware. Ordinarily, any communication between a same-sex couple that took place before Jan. 1 would not count as privileged communication, he said. This is the way Judge Joseph R. Slights III expressed what he saw as a strong legislative commitment by the Delaware General Assembly to people in a same-sex relationship.

More Challenges Coming?

Although this case is the first challenge to same-sex spousal testimonial privilege in Delaware, there was a similar case in Maryland last year, according to Sommer. In that case, the court also recognized that same-sex couples should be afforded the same communication privacy protections as couples in opposite-sex marriages. However, such cases are rare, and it is not expected that many similar claims will appear in the future.

Given the statutes of limitations for claims, there is only going to be a short period of time where the issue arises, Culhane said. Sommer added that Judge Slights' order could be applied to other legal areas that have created issues for same-sex couples such as hospital visitation rights or benefits if one's partner passes away. This is an order from the court that applies the law and applies the law fully, she said. The opinion does suggest that the strength of Delaware's civil unions is a helpful legal precedent that could have application in other contexts.

It is unlikely that the court's order would be appealed because defense counsel did not object to it. However, it could face legal challenges if the issue of spousal testimonial privilege for same-sex couples appears before the court in a future case.

“I would think people on the right would jump all over this as an example of overreaching by the court,” Culhane said. “Regardless of what you think about civil unions, applying this retroactively is something you would expect them to question.”

For now, however, the order remains a victory for same-sex couples. “This helps move us toward a place where there is no question among litigants about whether same-sex communication is privileged,” Sommer said.

Jeff Mordock can be contacted at 215-557-2485 or [email protected]. This article also appeared in The Delaware Law Weekly, an ALM sister publication of this newsletter.