1

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA


PAUL HARD, spouse and next best friend of
CHARLES DAVID FANCHER, deceased;

Plaintiff,

v.

ROBERT BENTLEY, in his official capacity as
Governor of the State of Alabama; LUTHER
JOHNSON STRANGE, III in his official capacity
as Attorney General of the State of Alabama; PAT
FANCHER

Defendants.





Civil Action No. 2:13-cv-922-WKW







PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF FIRST MOTION TO
COMPEL DEFENDANT BENTLEYS AND DEFENDANT STRANGES RESPONSE TO
INTERROGATORY 2 IN PLAINTIFFS FIRST SET OF INTERROGATORIES


Case 2:13-cv-00922-WKW-SRW Document 46 Filed 07/18/14 Page 1 of 6
2

This Court Should Order the State Defendants To Explain the State Interests
Justifying Alabamas Anti-LGBT Sex Education Law Because Those
Justifications May Reveal Animus Towards LGBT People
This case is a challenge to the constitutionality of Alabamas law and constitutional
amendment prohibiting the recognition of lawful, out-of-state marriage between people of the
same sex. The marriage restrictions at issue in this lawsuit are not the only Alabama laws that
demean LGBT people, however. For example, Alabama requires by statute that sex education in
public schools include and emphasize . . . in a factual manner and from a public health
perspective, that homosexuality is not a lifestyle acceptable to the general public and that
homosexual conduct is a criminal offense under the laws of the state. See Ala. Code 16-40A-
2.
1

Plaintiff served an interrogatory, which the State Defendants (Attorney General Strange
and Governor Bentley) have refused to answer, asking these Defendants to identify the
government interests purportedly justifying the statutory requirement that school children be
taught that homosexuality is not acceptable. The interrogatory and response are as follows:
Interrogatory No. 2
Identify every government interest that you contend supports Alabamas legal
requirement that sex education shall, as a minimum, include and emphasize . . . in a factual
manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to
the general public and that homosexual conduct is a criminal offense under the laws of the
state. Ala. Code 16-40A-2.


1
The code provision was enacted in 1992. 1992 Ala. Acts 92-590. Two efforts to repeal it, in
2012 and 2013, failed.
Case 2:13-cv-00922-WKW-SRW Document 46 Filed 07/18/14 Page 2 of 6
3

Response
The State Defendants object to this request on grounds that it is not reasonably
calculated to the discovery of admissible evidence. The 1992 statute cited is not challenged in
this litigation and it was not passed in conjunction with laws addressing marriage.
Plaintiff served this interrogatory because he is entitled to discover evidence that could
bear upon Alabamas animus towards LGBT people as a class. The sex education statute
which the Legislature has repeatedly refused to repeal certainly smacks of animus; it requires
teachers to express the State of Alabamas official disapproval of a whole class of citizens. So it
is reasonable to think that the State Defendants explanation of Alabamas justification for this
requirement might shed light on the nature and source of Alabamas disapproval of
homosexuality. Plaintiff is entitled to explore the nature of this disapproval because, under
binding Supreme Court authority, the question whether Alabama harbors animus towards LGBT
people would be relevant to this matter, in at least two ways:
First, if Alabama does harbor such animus, and if animus motivated the states decision
to exclude same-sex couples from marriage, then the restrictions at issue in this litigation should
be struck down as a violation of the constitution, regardless of the proper level of constitutional
scrutiny. When the disadvantage imposed is born of animosity toward the class of persons
affected, unequal treatment does not survive even rational basis review. See Romer v. Evans,
517 U.S. 620, 63435 (1996); see also Dept. of Agriculture v. Moreno, 413 U.S. 528, 534
(1973) ([I]f the constitutional conception of equal protection of the laws means anything, it
must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot
constitute a legitimate government interest.).
Second, Alabamas possible animus towards LGBT people may affect the proper level of
scrutiny this Court should apply in evaluating Plaintiffs equal protection claim. Groups that
Case 2:13-cv-00922-WKW-SRW Document 46 Filed 07/18/14 Page 3 of 6
4

have experienced a history of purposeful discriminatory treatment may be entitled to
heightened scrutiny. See, e.g., Massachusetts Bd. Of Retirement v. Murgia, 427 U.S. 307, 313
(1976). Alabamas explanation for why it has, for over twenty years, required that school
children be taught that homosexuality is not . . . acceptable may constitute direct evidence of
such purposeful discriminatory treatment.
Defendants nonetheless resist answering this interrogatory, claiming it is irrelevant
because the sex education statute is not challenged in this lawsuit, and because it was not passed
in connection with the marriage restrictions. These assertions are insufficient to permit the
State Defendants to avoid answering the interrogatory. Relevancy, of course, is construed
broadly to encompass any matter that bears on, or that reasonably could lead to other matters that
could bear on, any issue that is or may be in the case. See Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 240, 251 (1978). Because of this, the State Defendants must demonstrate the
irrelevance of the requested discovery. See Movie Gallery US, LLC v. Greenshields, 2008 WL
1746730 *2 (M.D. Ala. Apr. 18, 2008) (noting that a party resisting disclosure bears the burden
of demonstrating that the requested discovery . . . does not come within the broad scope of
relevance.) (citing Merrill v. Waffle House, Inc., 227 F.R.D. 467, 47071 (N.D. Tex. 2005)).
The State Defendants certainly cannot demonstrate the irrelevance of the interrogatory
or the information it seeks. The fact that the sex-education statute is not challenged in this
lawsuit does not automatically mean that justifications for the law are outside the scope of
discovery in this case. Nor does the fact that the sex-education law was not enacted in
connection with the marriage restrictions insulate it from discovery. As noted above, the sex-
education law has been in force for over twenty years, despite two recent efforts to repeal it.
Alabamas explanation as to why in 2014 school children must be taught that homosexuality
Case 2:13-cv-00922-WKW-SRW Document 46 Filed 07/18/14 Page 4 of 6
5

is unacceptable may help the Court evaluate whether the justifications for the marriage
restrictions that the State Defendants will offer in this litigation are legitimate, or mere pretense
to distract from what really is official animus.
For all the forgoing reasons, Plaintiff requests that the Court compel the State Defendants
to provide a complete answer to Interrogatory 2 contained in Plaintiffs First Set of
Interrogatories.
2


July 18, 2014
Respectfully submitted,

SOUTHERN POVERTY LAW CENTER

By: /s/ David C. Dinielli
David C. Dinielli* (California Bar No. 177904)
Samuel Wolfe (ASB-2945-E63W)
400 Washington Avenue
Montgomery, Alabama 36104
Telephone: (334) 956-8200
Facsimile: (334) 956-8481
david.dinielli@splcenter.org
sam.wolfe@splcenter.org
*Admitted pro hac vice

(Attorneys for Plaintiff)





2
Plaintiff has sufficiently met and conferred with the State Defendants before bringing this
motion. On June 13, 2014, Plaintiff sent a letter to State Defendants attorney James W. Davis.
The letter set out Plaintiffs disagreement over the relevance of Interrogatory 2 and asked to meet
and confer in order to discuss the issue. Counsel for Plaintiff and for the State Defendants
subsequently met and conferred by telephone, but were unable to reach agreement as to this
interrogatory.
Case 2:13-cv-00922-WKW-SRW Document 46 Filed 07/18/14 Page 5 of 6
6

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 18th day of July, 2014, I electronically filed the
foregoing document with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following counsel of record:
David Bryson Byrne, Jr., Esq.
Office of the Governor
State Capitol
600 Dexter Avenue
Suite NB-05
Montgomery, AL 36130

James William Davis, Esq.
Laura Elizabeth Howell, Esq.
State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36130

Gabriel Joseph Smith, Esq.
Foundation For Moral Law
1 Dexter Avenue
Opelika, AL 36103


/s/ David C. Dinielli



Case 2:13-cv-00922-WKW-SRW Document 46 Filed 07/18/14 Page 6 of 6