Spousal Privilege and the Same-Sex Marriage

One of the important legal benefits of marriage — something that can't really be quantified in monetary terms — is the ability to have somebody in whom to confide and share life's difficulties and secrets, sure that the law will place a "cone of silence" over the couple and decline to compel one to testify about the content of private conversations with the other.  Now a Delaware court has recognized spousal privilege for a same-sex couple married in California, even though Delaware does not authorize or recognize same-sex marriages as such.

Actually, the ruling in Theil v. Dentsply International, Inc., isn't quite so startling when one considers that Delaware has a Civil Union Act that went into effect at 10 am on January 1, 2012.  Under the Civil Union Act, registered civil union partners will have the same testimonial privilege that is enjoyed by married couples in Delaware.  Same-sex couples married elsewhere will be recognized as civil union partners in Delaware.  The big issue in this case, however, was whether such spousal privilege might apply "retroactively" to a same-sex couple in Delaware who married in California in August 2008, concerning conversations that might have taken place before the Delaware Civil Union Act went into effect.

The plaintiff in this case is David Theil, who has asserted a sexual orientation discrimination claim against his former employer, a dental products company. The case is necessarily in state court because the federal government does not outlaw sexual orientation discrimination by private sector employers, but Delaware does.  David Theil married Kenneth Lanza in California in 2008.  He subsequently filed this lawsuit.  Defendants sought information about and from Lanza during pre-trial discovery, and sought to depose him  (subject him to questioning under oath) in January 2012. 

Plaintiffs argued that spousal privilege would apply to all private communications between Lanza and Theil that took place after the date of their marriage. That would mean that Lanza could refuse to testify about such communications and, even if he wanted to testify, Theil could preclude him from doing so.  Defendants asserted that communications that took place prior to January 1, 2012, should not be considered privileged, since the extension of spousal privilege to same-sex couples in Delaware was only effective on that date. 

Superior Court Judge Joseph R. Slights, III (New Castle County), ordered that the deposition be postponed and heard arguments from the parties on the privilege issue on January 30, 2012.  There was a lot of argument at the hearing about whether the plaintiffs were improperly seeking an "advisory opinion" from the court concerning spousal privilege, or whether there was a real dispute, but it was clear (based on the transcript of the argument, furnished to me by Lambda Legal, which filed an amicus brief on the issue) that the judge ultimately concluded that it was likely that the privilege issue would arise during the deposition, given the range of information the defendants were seeking, so the question needed to be addressed, especially since there is no case law at this point concerning the practical effect of the Civil Union Act on the recognition of out-of-state marriages.

Said Judge Slights at the hearing, "I don't have the information that I need to weigh in as a matter of first impression on this issue.  However, I don't believe that a deposition needs to go forward, nor do I  I believe that a privilege log is necessary to join the predicate question of whether the privilege applies prior to January of this year.  The reason that I note that the issue is going to come up is unless these folks have an utterly dysfunctional relationship, it is impossible for me to believe that they did not have private conversations at some point in 2010, 2011 about what was happening in this litigation.  I think that they did.  And if the question is asked "Tell us about what was said between you after Mr. Theil spoke with Dentsply or at the end of a given day" and the privilege is invoked, we are going to be back here.  And I think it is a near certainty that we will be."  At the conclusion of the hearing, Judge Slights ordered the plaintiffs to file memoranda on point by February 13, and gave defendants two weeks to file responsive memoranda.

On March 9, Judge Slights issued his order, holding that "the spousal privilege under Delaware Rule of Evidence 504 applies to all confidential communications between Kenneth Lanza and Plaintiff, David Theil, that occurred from August 16, 2008, the date of their out-of-State, same-sex marriage (recognized as a "Civil Union" in Delaware), forward, subject to any waiver of that privilege after January 1, 2012, the effective date of the Civil Union and Equality Act."  Judge Slights also ordered that the parties reschedule the deposition of Lanza to take place on or before April 2.  The judge did not provide any written reasoning for his order in the form of an Opinion.  Lanza can be questioned, but he can't be compelled to answer any questions concerning confidential communications between himself and Theil that have taken place during their marriage, regardless whether they took place prior to January 1, 2012.

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