UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA


PAUL HARD,

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






PLAINTIFF’S REPLY TO STATE DEFENDANTS’ OPPOSITION
TO PLAINTIFF’S FIRST MOTION TO COMPEL

The State Defendants’ (the Governor and Attorney General’s) Opposition (No. 49) to
Plaintiff’s First Motion To Compel (No. 46) posits three reasons why they should be exempt
from responding to Plaintiff’s second interrogatory. This interrogatory, which is the only subject
of the Motion To Compel, asks the State Defendants to identify any government interest
supporting Alabama’s 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 (“the anti-gay sex education law”). The
reality that the State Defendants lack any valid purpose for this law should not excuse them from
answering Interrogatory 2.
In particular, the State Defendants claim: (1) they are unable to comment, in their official
capacity, as to the purpose of the anti-gay sex education law because they lack authority to do so;
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(2) Interrogatory 2 cannot lead to the discovery of relevant information because the anti-gay sex
education law is wholly unrelated to the anti-gay marriage laws challenged in this lawsuit (the
Sanctity Laws); and (3) the State Defendants have no way of knowing what motivated the
legislature to enact the anti-gay sex education law (a matter about which Interrogatory 2 does not
inquire).
None of those reasons is sufficient to defeat the State Defendants’ obligation to respond
to Interrogatory 2. The Court should grant the Motion To Compel.
I. The State Defendants Are Empowered To Respond to Interrogatory 2.
First, it simply is not true that the State Defendants are, in their official capacities, as
Defendants in this lawsuit, unable to respond to Interrogatory 2 for lack of authority. The
Attorney General is statutorily designated to litigate cases on behalf of state officers, including
the Governor, sued in their individual capacities, such as in the present case. Ala. Code § 36-15-
1(2) (The Attorney General “shall appear in the courts of . . . the United States, in any case in
which the state may be interested in the result.”); Ala. Code § 36-15-12 (“The Attorney General
is authorized to institute and prosecute, in the name of the state, all civil actions and other
proceedings necessary to protect the rights and interests of the state.”).
The Attorney General’s “powers, duties, and authority heretofore granted or authorized
by the constitution, statutory law, or the common law” are, according to statute, broadly
construed. Ala. Code § 36-15-1.1 (“Nothing contained in this article shall be construed so as to
in any way restrict, limit or abridge the powers, duties, or authority of the Attorney General as
heretofore authorized by the constitution, statutory law, or the common law.”); Mobil Oil Corp.
v. Kelley, 353 F. Supp. 582, 586 (S.D. Ala. 1973) aff’d, 493 F.2d 784 (5th Cir. 1974) (“The
Attorney General . . . has wide discretion in determining what actions he should take” in
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litigation and “[t]he actions taken by him in the case at hand were an exercise of that discretion
and in fulfillment of the duties of the office.”); McDowell v. State, 243 Ala. 87, 89, 8 So. 2d 569,
570-71 (1942) (confirming that the express statutory authority of the Attorney General to litigate
on behalf of the state or its officers, such as the Governor, includes “the implied authority to do
all things necessary and proper to their final conclusion”). The statutory authority to litigate on
behalf of the State’s interests surely encompasses the authority to respond to legitimate discovery
requests, such as Interrogatory 2.
Foreclosing the possibility of any doubt as to that authority, the Attorney General has a
specific statutory duty to provide his “opinion in writing, or otherwise, on any question of law
connected with the interests of the state or with the duties of any of the departments, when
required by the Governor.” Ala. Code § 36-15-1(1)(a). Moreover, the Attorney General is
statutorily authorized to provide a legal opinion or advice to practically any government officer
in Alabama at the state, county, or municipal level to assist that person in the “performance of
some official act that the officer or governing body must perform.” Ala. Code § 36-15-1(1)(c).
The statute clarifies as the outer boundary merely that the Attorney General is not to provide
such opinion or advice to a government officer for “private or personal questions.” Ala. Code §
36-15-1(1)(d).
The Attorney General, moreover, need not wait for a request but is statutorily enabled as
a core aspect of his duties to “carefully examine all of the general statutes now in force, or which
hereafter may be enacted by the Legislature from time to time, as to their clarity and
constitutional validity” and “make a report in writing to the Governor” . . . concerning Alabama
laws that may bear correction due to constitutional infirmity or other reasons. Ala. Code §§ 36-
15-1(7)-(8).
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In sum, there is no valid contention that the State Defendants are unable, for lack of
authority, to provide an answer to Interrogatory 2 about the government purpose behind the anti-
gay sex education law, and indeed the State Defendants provide no authority to the contrary.
Conclusory statements about the State Defendants claimed inability to respond to Interrogatory 2
do not trump standard rules of discovery requiring responses to valid discovery requests.
II. Interrogatory 2 Seeks Relevant Evidence.
Second, Plaintiff’s Memorandum of Law in Support of the Motion To Compel (No. 46)
explains the relevancy of Interrogatory 2 and is not repeated here. Plainly stated, the fact of a
series of anti-gay laws without any legitimate government purpose, including the anti-gay sex
education law and prohibition of any recognition of same-sex relationships is relevant to the
question of whether anti-LGBT animus sustains the Sanctity Laws as well as the level of scrutiny
applicable in this case.
The State Defendants argue that it is impossible for any animus to play into passage of
the Sanctity Laws. This makes no sense at all. It seems unusual, to say the least, for a state to
pass a law and then subsequently take the extensive steps necessary to amend its own
constitution just to restate what already is the law. See Ala. Const. amend. 774. Given this, it
certainly is reasonable to suspect that animus may have played a role in the enactment of a law
and constitutional amendment that the Attorney General and the Governor now say is nothing
more than surplusage. The fact that Alabama expended considerable time, effort, and expense of
passing a law and then enshrined a similar provision in the state constitution, which it now
defends, was an attempt to defeat mounting federal judicial opinions holding unanimously that
denying marriage equality to gay and lesbian citizens violates basic principles of constitutional
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equal protection and due process. These actions are consistent with the proposition that the
Sanctity Laws reflect animus rather than any legitimate government purpose.
Indeed, this new theory – that the Sanctity Laws serve no purpose other than to reflect
and reaffirm the current state of the law is at odds with the Defendants’ own sworn interrogatory
response submitted in this case. (Attached hereto as Exhibit A.) That response asserts that the
Sanctity Laws advance the purported government interest of maintaining biological connections
between children and extended kin groups, not that they simply restate preexisting law. The new
theory also is flatly contrary to the interests described in an expert report offered by the State
Defendants (written by a current, out-of-state law student) who links Alabama’s current interest
in maintaining the Sanctity Laws to the history of Western culture, beginning with Plato, and
argues that these laws advance the state’s interest in maintaining faith with a long history of
privileging procreative marriages between a man and a women as superior.
Alabama, led by the Governor who has described marriage as a “sacred institution
between a man and a woman, which should be revered and protected by our society”
1
and that he
will “work every day to continue to protect the sanctity of marriage in Alabama,”
2
is highly
resistant to marriage equality. That resistance surely has some animating motivation – one that
examining government purposes behind similar Alabama laws specifically singling out and
disadvantaging LGBT people, like the anti-gay sex education law, should help clarify.


1
Ashley Thompson, How do Robert Bentley and Parker Griffith Compare?, WAKA CBS 8
NEWS, May 22, 2014, http://www.waka.com/news/montgomery-news/How-Do-Robert-Bentley-
and-Parker-Griffith-Compare-260357421.html?m=y (attached as Ex. E (No. 53-6) to Decl. of
David C. Dinielli in Opp’n to Governor Bentley’s Mot. To Dismiss).
2
Mike Cason, Alabama Man Files Federal Lawsuit Seeking Recognition of Same-Sex Marriage
Performed in Massachusetts (Updated), ALABAMA MEDIA GROUP,
http://blog.al.com/wire/2014/02/alabama_man_files_federal_laws.html. (attached as Ex. B (No.
53-3) to Decl. of David C. Dinielli in Opp’n to Governor Bentley’s Mot. To Dismiss).
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III. Interrogatory 2 Asks the Government Interest for the Sex Education Law.
Finally, the State Defendants claim that they have no way of knowing the intent of the
legislature in passing the anti-gay sex education laws. This a red herring because divining the
intent of the legislature is not requested in Interrogatory 2. The State Defendants similarly argue
that they are unable to describe any government purpose for the anti-gay sex education laws and
that doing so might violate future attorney-client privilege. Defs.’ Opp’n to Pl.’s Mot. To
Compel at 3-4 (No. 49). But Interrogatory 2 contains no request for privileged advice in some
hypothetical case in the future. Plaintiff simply requests the State Defendants’ identification of
any actual government purpose behind the anti-gay sex education law. If one does not exist, then
they should so state.
* * * *
Plaintiff respectfully requests that the Court grant its Motion To Compel Defendant
Bentley’s and Defendant Strange’s Response to Interrogatory 2 in Plaintiff’s First Set of
Interrogatories for the reasons stated above as well as those presented in the original brief in
support of the Motion (No. 46).
August 7, 2014

Respectfully submitted,

SOUTHERN POVERTY LAW CENTER

By: /s/ Samuel Wolfe

David C. Dinielli* (California Bar No. 177904)
Samuel Wolfe (ASB-2945-E63W)





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400 Washington Avenue
Montgomery, Alabama 36104
Telephone: (334) 956-8200
Facsimile: (334) 856-8481
david.dinielli@splcenter.org
sam.wolfe@splcenter.org
*Admitted pro hac vice

(Attorneys for Plaintiff)

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 7th day of August, 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/Samuel Wolfe

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