We haven't had occasion to use the phrase Jim Crow in a legal brief in years, but battling AAA (aka CSAA) over its insistence that our unmarried clients reveal their private communications has forced our hand. [Read our brief, particularly pages 10-13.]
The issue is simple: in California, if you're married, you don't have to reveal what you and your spouse talk about. Doesn't matter if you're discussing the Giants' latest trade, your mating rituals, or your shared love of almond butter--if you got a ring on it, you're good.
Only as you may know, because there have been a few thousand news stories on the subject, before June 2013, same sex couples could not get married, which means they had no right to protect their communications. Lawyers call that kind of right a privilege.
So along comes AAA which, because it would like to win a lawsuit against it for mucking up an insurance claim, says our clients have to reveal their pillow talk because they were not married. We said, uh, wait, what about due process? What about equal protection? What about the Constitution?
AAA says, true, marriage was not available to your clients, so they could not claim the privilege. But they had a right to become registered domestic partners, and if they'd done so, well, then they'd be protected. The problem is that courts all over the country have found that domestic partnership is a lame stand-in for marriage. As the brilliant Judge Vaughn Walker said in the original gay marriage case, domestic partnership is a "substitute and inferior institution that denies marriage to same-sex couples."
In other words, according to AAA, Sure, you can watch the movie, but only so long as you watch from the hot, crowded, and rickety balcony.
Separate, but not equal at all. Jim Crow lives. Who'd of thunk it?
Wait, we know who'd of thunk it. A really big insurance company. That's who.