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In a civil rights suit brought by relatives of a man who committed suicide after police threatened to tell his family that he was gay, a divided 3rd U.S. Circuit Court of Appeals has ruled that the law clearly protects a person’s sexual orientation from forced disclosure. But a dissenting judge said that while he agreed that the police had violated the man’s constitutional rights, the suit should have been dismissed on “qualified immunity” grounds since the right was not “clearly established” in 1997 when the incident occurred. The decision in Madonna Sterling v. Borough of Minersville is significant because it broadly interprets a long line of U.S. Supreme Court and lower court decisions involving privacy in “sexual” and “intimate” information to include sexual orientation — an issue that the U.S. Supreme Court has never squarely addressed. But U.S. Circuit Judge Carol Los Mansmann cited cases dating back to Griswold v. Connecticut in 1965, which established married persons’ right to contraceptives on privacy grounds, and Roe v. Wade, which established the right to abortion in 1973. Mansmann, in an opinion joined by U.S. Circuit Judge Marjorie O. Rendell, said the 3rd Circuit has since then taken “an encompassing view of information entitled to a protected right to privacy.” Considering the court’s history of carefully guarding an individual’s “right to privacy against unwarranted government intrusion,” Mansmann said, “it is difficult to imagine a more private matter than one’s sexuality and a less likely probability that the government would have a legitimate interest in disclosure of sexual identity.” But Senior U.S. Circuit Judge Walter K. Stapleton said he disagreed that the Minersville police can be sued for such a forced disclosure because “a person’s right to privacy simply was not clearly established in April of 1997.” The ruling is a victory for attorney David Rudovsky of Kairys Rudovsky Epstein Messing & Rau, who represented the mother of the man who committed suicide. On April 17, 1997, Marcus Wayman, then 18, and a 17-year-old friend were parked in a lot adjacent to a beer distributor. Minersville Officer F. Scott Wilinsky grew suspicious because the car’s headlights were off and because the area was known as a high-crime area. After calling for back-up, Wilinsky was joined by Officer Thomas Holban, and the two questioned the young men. After searching the car and finding condoms, police said the men admitted that they were gay and had parked to have sex. Both were arrested for under-age drinking. Rudovsky contends that at the station, police lectured the two men about the Bible’s condemnation of homosexual sex. Wilinsky allegedly then threatened Wayman that if Wayman did not tell his grandfather that he was gay, Wilinsky would do so himself. After the alleged threat, Wayman told his friend that he was going to kill himself. Police later forced the younger man to tell his mother that he was gay. He was released from custody later that night and committed suicide in his home. In her suit, Madonna Sterling alleged that police violated her son’s right to privacy. When U.S. Magistrate Judge Arnold C. Rapoport refused to dismiss the suit, the police appealed on qualified immunity grounds. Attorney L. Rostaing Tharaud of Philadelphia-based Marshall Dennehey Warner Coleman & Goggin argued that while the police denied ever making such a threat, the case should have been dismissed since the right to privacy in one’s sexual orientation was not clearly established. Mansmann found that the Supreme Court has never “definitively extended the right to privacy to confidentiality of one’s sexual orientation.” But she found that a long line of cases clearly established a “zone of privacy” involving “matters of personal intimacy.” The police, she said, “should have known” that forcing Wayman to disclose his sexual orientation would violate his constitutional rights since they admitted that it was “a matter of private concern.” “Because the confidential and private nature of the information was obvious, and because the right to privacy is well-settled, the concomitant constitutional violation was apparent notwithstanding the fact that the very action in question had not previously been held to be unlawful,” Mansmann wrote. In a friend-of-the-court brief, attorney Catherine Hanssens, of Lambda Legal Defense & Education Fund, urged the court to uphold Rapoport’s decision that the case must go to trial. “Lambda participates in this case because of the need to protect lesbians’ and gay men’s right of informational privacy and their ability to control the disclosure of their sexual orientation to others without coercion or sanction from the state,” Hanssens wrote. “As the plaintiff’s evidence in this case shows, enormous harms can arise, particularly among lesbian and gay youth, when police or other government authority is inappropriately used to force disclosure and advance a personal moral agenda. Given well-established legal principles, the officers involved here should have known that invading Marcus Wayman’s privacy and acting to punish or condemn homosexuality constituted an illegitimate use of their authority as police officers.”

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