Shahar v. Bowers , 70 F.3d 1218 ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
No. 93-9345.
Robin Joy SHAHAR, Plaintiff-Appellant,
v.
Michael J. BOWERS, Individually and in His Official Capacity as
Attorney General of the State of Georgia, Defendant-Appellee.
Dec. 20, 1995.
Opinion of Kravitch, Circuit Judge
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:91-cv-2397-RCF), Richard C. Freeman,
Senior District Judge.
Before KRAVITCH, Circuit Judge, and GODBOLD and MORGAN, Senior
Circuit Judges.
GODBOLD, Senior Circuit Judge:
The appellant Robin Joy Shahar is a homosexual female who was
offered employment with the Department of Law of the State of
Georgia to begin at a future date. She accepted the offer, but
before the employment began she made known her plans to engage in
a marriage ceremony with her female companion. The Attorney
General of Georgia, who has ultimate responsibility for hiring and
employment practices of the Department of Law, learned of her plans
and, before the marriage ceremony took place, terminated the offer
of employment.
Shahar sued the Attorney General under 42 U.S.C. § 1983,
alleging violation of her rights of intimate association, of her
freedom of religion, and of equal protection and substantive due
process. She sought declaratory and injunctive relief, including
placement as a staff attorney in the Department and compensatory
and punitive damages from the defendant in his individual capacity.
The district court denied plaintiff's motion for summary judgment
and granted defendant's motion for summary judgment.
The court unanimously agrees to affirm the conclusion of the
district court that Shahar's right of intimate association was
burdened. The court holds, however, Judge Kravitch dissenting,
that the district court erred in applying a balancing test to
determine whether Shahar's rights under the Constitution were
violated and that the case must be remanded to the district court
for it to consider these issues under a strict scrutiny standard.1
The court affirms the summary judgment for the Attorney
General on Shahar's free expression and equal protection claims for
reasons set out by Judges Kravitch and Morgan in their separate
opinions. Judge Godbold disagrees with these affirmances.
Shahar's claim of violation of substantive due process is not
substantially presented on appeal. All judges agree that summary
judgment for the defendant on that claim must be affirmed.
Shahar, then known as Robin Brown, worked as a law clerk in
the Department of Law during the summer of 1990. During her
clerkship she told other clerks that she was a lesbian. She talked
with Mary Beth Westmoreland, an attorney with the Department,
explained the relationship with her partner, Francine Greenfield,
and discussed whether it would be appropriate to bring Greenfield
to a picnic to be given by the departmental division in which
1
Since the district court granted summary judgment for
Bowers on all claims it did not address his assertion of
qualified immunity. If, on remand, Shahar reasserts claims for
monetary damages, then that issue would have to be addressed.
Shahar was working. Westmoreland discouraged the proposal, and
Shahar did not bring Greenfield to the picnic.
In September 1990 defendant offered Shahar a permanent
position as a Department attorney to commence in the fall of 1991,
and she accepted. She had been a Phi Beta Kappa as an
undergraduate. She graduated from Emory Law School in the spring
of 1991 with an outstanding academic record (sixth in her class
academically), as an editor of the law review, and the recipient of
a distinguished scholarship.
In the fall of 1990, following her acceptance, Shahar
completed a standard personnel form of the Department. In the
"Family Status" section she showed her "Marital Status" as
"Engaged." In response to "Spouse" she added the word "Future" and
inserted the name of Francine M. Greenfield. She identified her
"Future Spouse's Occupation" as an employee of a department of the
State of Georgia, her purpose being to reveal that Greenfield was
employed by the State. The Department received the form and filed
it without fully reviewing it.
In June of 1991, by telephone, Shahar discussed with Deputy
Attorney General Bob Coleman her upcoming employment. He asked
whether she could begin work in mid-September, and she responded
that she would prefer to begin work later in the month in light of
her upcoming wedding. Shahar did not tell Coleman that she planned
marriage to another woman but did state that she would be changing
her last name from Brown to Shahar. Coleman mentioned Shahar's
upcoming wedding to Senior Assistant Attorney General Jeffrey
Milsteen, who subsequently learned from Susan Rutherford, a
Department attorney, that plaintiff's planned wedding would be to
another woman. Rutherford and another Department employee had seen
Shahar in a restaurant in the spring of 1991, and Shahar told them
that she and her female dinner companion were preparing for their
upcoming wedding.
Attorney General Bowers learned that the planned wedding was
to another woman. He discussed the matter with his staff.
Information conveyed to him included Shahar's personnel form,
Coleman's description of his telephone conversation with Shahar,
information concerning the restaurant encounter between Rutherford
and Shahar, information of unspecified origin that Shahar planned
to send or already had sent invitations to the ceremony and that
some staff of the Department of Law were on the invitation list,
and other information that, as the Attorney General described it,
the planned ceremony would be "a big or church wedding, I don't
remember which." The Attorney General talked with a female Jewish
member of his staff, who told him the wedding was to be performed
by a rabbi from New York who performed homosexual marriages but
that "she was not aware of homosexual marriages or gay and lesbian
marriages being recognized in Judaism."
The Attorney General wrote to Shahar on July 9, withdrawing
the offer of employment. The letter said in part:
This action has become necessary in light of information which
has only recently come to my attention relating to a purported
marriage between you and another woman. As the chief legal
officer of this state inaction on my part would constitute
tacit approval of this purported marriage and jeopardize the
proper function of this office.
Before the wedding Brown and Greenfield changed their names to
Shahar, which refers to being in a search for God.
On July 28 a rabbi performed a Jewish marriage ceremony for
the couple, conducted in a state park in South Carolina. This suit
was filed in October 1991.
I. The District Court's Findings
With respect to interference with intimate association, the
court defined the relevant association as Shahar's relationship
with her lesbian partner whom she intended to marry. It declined
to decide whether this associational relationship fell within the
definition of traditional family relationships described in Roberts
v. U.S. Jaycees, 468 U.S. 609, 619-20, 104 S. Ct. 3244, 3250-51, 82
L. Ed. 2d 462 (1984). It decided instead that it was within the
"broad range of [constitutionally protected] human relationships"
that Roberts described as falling between familial relationships
and associations such as large business enterprises. Id. at 620,
104 S.Ct. at 3250.
The court then found, based on undisputed facts, and applying
the balancing test of Pickering v. Board of Educ., 391 U.S. 563, 88
S. Ct. 1731, 20 L. Ed. 2d 811 (1968), that the defendant's articulated
and unrebutted concerns regarding Shahar's employment outweighed
her interests in the intimate association with her female partner.
The court did not address Shahar's expressive association claim
because it felt that it overlapped her free exercise claim and
required no greater constitutional protection than her intimate
association claim.
With respect to free exercise, the court assumed without
deciding that defendant indirectly burdened Shahar's right to
freely exercise her religion, but again it applied Pickering
because it said it found no other controlling guideline, and it
held that any burden suffered by Shahar was justified in light of
the unique governmental concerns involved in efficient operation of
the Department.
As to equal protection, Shahar contended that by withdrawing
the offer of employment the defendant acted with intent to
discriminate against her on the basis of her sexual orientation.
The court held that defendant's classification, if any, was not
based upon mere sexual orientation. It also found that, even if
Shahar could establish that defendant acted in part based upon a
general classification of plaintiff as a homosexual, she had not
presented sufficient facts to raise a genuine issue of fact whether
defendant acted with an impermissible intent to discriminate.
As to substantive due process, the court granted summary
judgment because plaintiff conceded that she had no property
interest in the promised employment and made no showing of
deprivation of any liberty interest.
II. The Contours of Intimate Association
Shahar's position is that the district court correctly found
that her intimate association was constitutionally protected but
erred in applying the Pickering balancing test. The Attorney
General's position is that the district court erred in finding that
Shahar's association was constitutionally protected, but, if it
was, the court correctly applied Pickering to find Shahar's
associational interests were outweighed by the interests of the
Attorney General.
The Attorney General treats the "marriage" planned by Shahar
as a civil status governed by Georgia law, though Georgia law
neither expressly forbids nor expressly authorizes same-sex
marriage.2 Georgia's statutory scheme, and its case law governing
common-law marriages, repeatedly embrace the concept of marriage as
being between persons of different genders.
Almost unanimously American cases have held that same-sex
couples are not constitutionally entitled to attain the legal and
civil status of marriage by obtaining a marriage license and
complying with other requirements of the law of the jurisdiction.
Dean v. District of Columbia, Civil Act. No. 90-13892, 1992 WL
685364 (D.C.Super.Ct. June 2, 1992), aff'd, 653 A.2d 307
(D.C.Ct.App.1995); De Santo v. Barnsley, 328 Pa.Super. 181, 476
A.2d 952 (1984) (common law marriage); Singer v. Hara, 11
Wash.App. 247, 522 P.2d 1187 (1974); Jones v. Hallahan, 501 S.W.2d
588 (Ky.1973); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185
(1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65
(1972). See also Adams v. Howerton, 673 F.2d 1036 (9th Cir.)
(whether or not valid under state law, marriage of two males does
not confer spousal status under Federal Immigration Act), cert.
denied, 458 U.S. 1111, 102 S. Ct. 3494, 73 L. Ed. 2d 1373 (1982).
Some cases state that marriage is inherently a relationship between
persons of different genders and cannot have application to a
same-sex couple. Singer, 522 P.2d 1187; Jones, 501 S.W.2d 588.
2
The record does not show that the Attorney General knew, or
inquired, where the ceremony would take place. Neither party has
explored the law of South Carolina, where the wedding occurred,
or considered what impact, if any, it might have on this case.
Thus we focus on Georgia law, which both parties consider
relevant.
The Supreme Court of Hawaii, however, has held that restricting
marital relation to male and female establishes a sex-based
classification subject to a strict scrutiny test in a state equal
protection challenge. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44
(1993).
Shahar did not assert when her job commitment was terminated,
and has not asserted in this suit, that either the ceremony she
planned or the status created by it was a Georgia civil marriage.
Shahar does not assert that she desires or has sought a marriage
license. She does not question the constitutionality of the
Georgia licensing statute or any other of the provisions of Georgia
law that speak in terms of marriage as a ceremony, and as a status,
between persons of different sexes. Nor does she question the
validity of Georgia principles of common law marriages.
What Shahar claims is that she proposed to—and did—engage in
a Jewish religious ceremony that is recognized as a marriage
ceremony by the branch of Judaism to which she adheres; that this
conferred upon her and her partner a religious-based status that is
apart from and independent of civil marriage as provided by Georgia
law; and that she can accept, describe, and hold out both the
ceremonial event and the status created by it by using the term
"marriage." In ¶ 1 of her amended complaint Shahar alleged that
she was "fired" because of her participation "in a private
religious ceremony of marriage." The rabbi performed a "Jewish
marriage ceremony," ¶ 7, followed by "a weekend celebration of
Jewish marriage," a "private religious marriage ceremony," ¶ 8.
Plaintiff and her partner considered their "planned religious
marriage" an important event, ¶ 9. Shahar has disclaimed any claim
of "civil" or "legal" marriage pursuant to Georgia law. Her
amended complaint alleged:
10. Plaintiff does not believe and has at no time represented
either that her religious union with her partner carries with
it any legal rights or that it constitutes a legal (civil)
marriage. The ceremony was of a purely religious nature.
The intimate association Shahar asserts is not based upon
false or sham assertions of religious belief, or hasty decision, or
overnight conversion. She and her partner grew up in traditional
Jewish families. Shahar attended Hebrew school from the third
grade. She was bat mitzvahed at age 13 and continued in Hebrew
school until she was confirmed at age 16. Greenfield grew up in a
conservative, kosher, Jewish home. She went through Jewish
training through high school, attended Jewish summer camps, and was
involved in Jewish youth groups.
Shahar and Greenfield have been significant participants in
the life of their synagogue, located in Atlanta. It is affiliated
with the Reconstructionist Movement, one of several movements
within Judaism. The synagogue serves gays, lesbians, and
heterosexuals. The Reconstructionist Movement is regarded as
liberal in some respects but is conservative in others. Shahar has
led services at the synagogue and has given several sermons. She
and Greenfield often attend together. The proposed ceremony was
announced at a service of the synagogue.
Their rabbi, Sharon Kleinbaum, counseled them in eight or nine
formal premarital sessions and many informal ones. Rabbi Kleinbaum
described the manner in which she satisfied herself of their
commitment to the Jewish faith. She discussed with them "the
seriousness of their commitment to the Jewish issues as well as to
each other, and anything related to wedding ceremonies in general
that, as a Rabbi, I would do." Dep. p. 82. Continuing, she said,
"I discussed with them the nature of their home life and the
significance of Jewish practices to them and how it was
inconceivable to them to do any kind of ceremony that was not a
Jewish one." Id. at 83. Rabbi Kleinbaum considers that the union
in which they joined is a public affirmation of their commitment to
each other and to the Jewish people, having no legal significance
but only personal and religious significance, and that it can be
terminated only by the church.
The evidence demonstrates without dispute that same-sex
marriage is accepted within the Reconstructionist Movement of
Judaism, that Shahar and her partner are committed to that belief,
and that, in keeping with their Jewish principles, they carefully
and thoughtfully prepared for marriage.
The district judge had before him the depositions of three
Jewish rabbis. Rabbi Kleinbaum, who performed the ceremony,
formerly was associated with the Reconstructionist synagogue in
Atlanta and has become rabbi of a New York synagogue which has the
largest number of gay and lesbian attendants of any synagogue in
the United States. A second rabbi who testified is the president
of the National Organization of Rabbis of Reconstructionist
Congregations. A third is a well-known rabbi from the Conservative
Movement of Judaism. Fairly stated, the depositions do not
demonstrate significant differences of fact but do reveal that
Judaism in the United States does not have a monolithic view of
same-sex marriages. The Reconstructionist Movement accepts the
concept of same-sex marriage and many rabbis within the Movement
perform such marriages. The Reconstructionists are working on a
manual that will help guide rabbis performing same-sex marriages.
Other Movements in Judaism reject same-sex marriages. Still other
Movements are divided in view, with some rabbis performing such
marriages and others declining to do so. But the critical facts
that emerge are that Shahar and her partner are lifelong adherents
to Judaism and good-faith, dedicated participants in the
Reconstructionist Movement; the Reconstructionist Movement is a
significant movement within American Judaism; and it regards
same-sex marriages as acceptable and desirable in preference to
couples living together without marriage.
The actual ceremony between Shahar and Greenfield occurred
after her job commitment was terminated. But it is relevant to her
claim that her association has religious basis and status. The
ceremony was the culmination of a weekend of religious-centered
activities. Approximately 150 family and friends were invited and
approximately 100 attended. Events began Friday evening with the
celebration of the Hebrew Sabbath, which extends from Friday
evening to Saturday evening. The wedding occurred on Sunday.
Essentially the ceremony followed a traditional ceremony for a
heterosexual Jewish couple except for deletion of the terms "bride"
and "groom." It took place beneath a traditional huppah, or
canopy. The couple signed a traditional Kutubah, or written
marriage contract. They exchanged rings in traditional fashion.
The traditional glass was broken. The traditional seven blessings
were given, done in Hebrew and in English. Rabbi Kleinbaum was
dressed in traditional garb. She described the event as a "Jewish
religious ceremony," as a "Jewish marriage," and as a "Jewish
wedding."
The Attorney General states his position this way:
The Attorney General did not withdraw Shahar's offer of
employment because of her association, religious or otherwise,
with other homosexuals or her female partner, but rather
because she invoked the civil and legal significance of being
"married" to another woman. Shahar is still free to associate
with her female partner, as well as other homosexuals, for
religious and other purposes.
Brief, p. 35. But he did not submit substantial evidence tending
to show that Shahar "invoked the civil and legal significance of
being "married' to another woman." Shahar and Greenfield have been
companions for several years. They jointly own the house in which
they live, but their joint ownership began several years before
this case arose and, in any event, joint ownership is not limited
3
to persons married pursuant to Georgia civil law. The couple
benefit from an insurance rate (presumably on household or
automobile insurance) lower than that available to single women.
But, under the undisputed evidence, Shahar talked to the insurance
agent, explained that she was going to undergo a religious ceremony
with her female partner, described and explained the ceremony, and
asked if the company would consider giving them the rate available
to married women, and the company agreed to do so.
The intimate relationship between Shahar and her partner whom
she planned to marry did not involve marriage in a civil, legal
sense but it was inextricably entwined with Shahar's exercise of
3
O.C.G.A. §§ 44-6-120 & 44-6-190.
her religious beliefs. The court holds that the district court did
not err in defining that intimate relationship as constitutionally
protected.4
III. Scope of Review of Intimate Association
The district court used the Pickering balancing test. The
court holds, Judge Kravitch dissenting, that strict scrutiny must
be utilized.
The difficulty of identifying a correct standard of review is
demonstrated by the lengthy analysis in McCabe v. Sharrett, 12 F.3d
1558 (11th Cir.1994) (noting three possible standards—Pickering,
Elrod-Branti, and strict scrutiny). Pickering arose in the context
of free speech, and the line of cases following it have applied
most often to those involving freedom of speech or expressive
association, and they give somewhat more deference to the employer.
The Elrod5 and Branti6 line of cases are variants of strict scrutiny
that focus on the effects of political beliefs on the job
performance of public employees and have not been applied outside
of the political patronage context. See McCabe, 12 F.3d at 1567.
The court believes that the general standard of strict
scrutiny is applicable to Shahar's intimate association claim and
that the acts of the Attorney General must be deemed to infringe on
4
Neither the Supreme Court nor any circuit court has held
that an association based solely upon the sexual orientation of a
same-sex couple is an intimate association having constitutional
protection. The district court has not so held in this case and
neither do we.
5
Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547
(1976).
6
Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d
574 (1980).
Shahar's rights unless shown to be narrowly tailored to serve a
compelling governmental interest. Shahar was not engaged in
political commentary. Marriage in the conventional sense is an
intimate association significant burdens on which are subject to
strict scrutiny. Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673,
54 L. Ed. 2d 618 (1978). Though the religious-based marriage in
which Shahar participated was not marriage in a civil, legal sense
it was intimate and highly personal in the sense of affection,
commitment, and permanency and, as we have spelled out, it was
inextricably entwined with Shahar's exercise of her religious
beliefs. Strong deference must be given to her interests and less
to the employer's interest than in a Pickering-type case.
IV. Expressive Association
Shahar also asserts that Bowers violated her right to
expressive association. Opening Brief, 36 n. 7; Reply Brief, 12
n. 6. Expressive association is the "right to associate for the
purpose of engaging in those activities protected by the First
Amendment ... [, including] the exercise of religion." Roberts,
468 U.S. at 618, 104 S.Ct. at 3249. The right of expressive
association may be limited by regulations which serve a compelling
state interest. Id. at 623, 104 S.Ct. at 3252 ("Infringements on
[the right to expressive association] may be justified by
regulations adopted to serve compelling state interests, unrelated
to the suppression of ideas, that cannot be achieved through means
significantly less restrictive of associational freedoms."). See
also Board of Directors of Rotary Int'l v. Rotary Club of Duarte,
481 U.S. 537, 549, 107 S. Ct. 1940, 1948, 95 L. Ed. 2d 474 (1987)
("Even if the Unruh Act does work some slight infringement on
Rotary members' right of expressive association, that infringement
is justified because it serves the State's compelling interest in
eliminating discrimination against women.").7 The district court
did not address Shahar's expressive association claim because of
its overlap with her free exercise claim and the court's conclusion
that her expressive association claim required no greater
constitutional protection than her intimate association claim. The
court, Judge Kravitch dissenting, remands this claim for
consideration by the district court under the compelling interest
test.
V. Freedom of Religion
The district court applied the balancing test of Pickering to
Shahar's free exercise claim after considering the restrictions
placed by Employment Div., Dep't of Human Resources v. Smith, 494
U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), on the
traditional compelling interest test articulated in Sherbert v.
Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). Smith
had sharply criticized Sherbert and essentially limited it to the
unemployment benefits context. 494 U.S. at 883-85, 110 S.Ct. at
1602-04.
For reasons set out in Part II, the writer would hold that
Shahar asserted a free exercise claim and would remand this claim
7
This court instructed a district court to apply the
Pickering balancing test in a similar expressive association
claim, Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546,
1559 & n. 26 (11th Cir.1987). But the Supreme Court applied the
compelling interest test in Rotary, which was decided subsequent
to Hatcher.
to the district court for it to reconsider under the compelling
interest test. Judges Kravitch and Morgan do not agree with this
view.
VI. Equal Protection
Federal courts have concluded that homosexuals, as a class, do
not receive heightened scrutiny when their equal protection claims
are analyzed, and accordingly, the courts have applied the rational
basis test to such claims. See, e.g., Equality Found. of Greater
Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 266 n. 2
(1995) (amendment to city charter denying special status and legal
protection based on sexual orientation); Jantz v. Muci, 976 F.2d
623, 630 (10th Cir.1992) (applicant for public high school teacher
and coach position), cert. denied, --- U.S. ----, 113 S. Ct. 2445,
124 L. Ed. 2d 662 (1993); Ben-Shalom v. Marsh, 881 F.2d 454, 464
(7th Cir.1989) (U.S. Army Reserves sergeant), cert. denied, 494
U.S. 1004, 110 S. Ct. 1296, 108 L. Ed. 2d 473 (1990); Padula v.
Webster, 822 F.2d 97, 103 (D.C.Cir.1987) (applicant for FBI special
agent). But see Watkins v. U.S. Army, 875 F.2d 699, 728 (9th
Cir.1989) (en banc) (Norris, J., concurring in judgment and
declaring homosexuals to be a suspect class), cert. denied, 498
U.S. 957, 111 S. Ct. 384, 112 L. Ed. 2d 395 (1990). The writer would
hold that the court need not consider whether homosexuals are, by
that status alone, a class deserving a heightened scrutiny when
alleging violations of the equal protection clause because, without
the court's making that determination, the facts of this case
require the application of strict scrutiny to Shahar's equal
protection claim.
Shahar's classification or characterization is not that of
homosexuality alone. Rather she is a homosexual engaging in the
exercise of her religious faith, including her religious ceremony
of marriage and her right to accept, describe and hold out the
event and the status created by it by using the term "marriage."
"[W]here a constitutional "fundamental right' is assaulted by
operation of [a government regulation], ... the enactment "will be
sustained only if [it is] suitably tailored to serve a compelling
state interest.' " Equality Found., 54 F.3d at 266 (quoting City
of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S. Ct.
3249, 87 L. Ed. 2d 313 (1985)). Cf. San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) (Court
disagreed with respondents' contention that education was a
fundamental right and held that rational basis review applied);
Price v. Tanner, 855 F.2d 820, 823 n. 7 (11th Cir.1988) (because
the appellant did not allege the existence of a suspect class or
burdened fundamental right, strict scrutiny would not apply), cert.
denied, 489 U.S. 1081, 109 S. Ct. 1534, 103 L. Ed. 2d 839 (1989);
Tarter v. James, 667 F.2d 964, 969 (11th Cir.1982) (no fundamental
right was involved, so rational basis review applied). See also
Laurence H. Tribe, American Constitutional Law §§ 16-7—16-11, § 16-
12 at 1464 (2d ed. 1988) ("[E]qual protection analysis demands
strict scrutiny ... of classifications that penalize rights already
established as fundamental for reasons unrelated to equality....");
John E. Nowak & Ronald D. Rotunda, Constitutional Law § 14.3 (4th
ed. 1991).
The Supreme Court has used equal protection analysis, and a
strict scrutiny standard, to consider state legislation that
allegedly burdened individuals' right to marry, Zablocki v.
Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978) (statute
forbidding marriage by any person with minor children not in
his/her custody and which the person is under obligation by court
order to support); Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817,
18 L. Ed. 2d 1010 (1967) (statute forbidding miscegenation); right
to procreate, Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86
L. Ed. 1655 (1942) (habitual criminals subjected to sterilization);
right to travel, Memorial Hosp. v. Maricopa County, 415 U.S. 250,
94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974) (residency requirement for
indigents in order to receive non-emergency medical care); Dunn v.
Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972)
(residency requirements for voting); Shapiro v. Thompson, 394 U.S.
618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969) (residency requirements
for welfare recipients); and right to vote,Dunn, 405 U.S. 330, 92
S. Ct. 995, 31 L. Ed. 2d 274 (residency requirements for voting);
Kramer v. Union Free Sch. Dist., 395 U.S. 621, 89 S. Ct. 1886, 23
L. Ed. 2d 583 (1969) (those without children in the school system or
who did not own or lease taxable property were ineligible to vote
in school district elections). Cf. Sosna v. Iowa, 419 U.S. 393, 95
S. Ct. 553, 42 L. Ed. 2d 532 (1975) (appearing to apply a strict
scrutiny standard but deciding that state interests override the
individual's interest where state law required residency for at
least one year prior to petitioning for divorce).
The writer, Judges Kravitch and Morgan disagreeing, would
remand the equal protection claim to the district court for
analysis under the strict scrutiny standard.
VII. Mandate of the Court
The decision of the district court that Shahar's intimate
association rights were violated is AFFIRMED. The summary judgment
for defendant on this claim is VACATED and it is REMANDED to the
district court for it to determine under a strict scrutiny standard
whether this violation infringed Shahar's constitutional rights.
The claim of violation of expressive association may be addressed
by the district court on remand.
Summary judgment for the defendant on the free exercise, equal
protection, and substantive due process claims is AFFIRMED.
MORGAN, Senior Circuit Judge, concurring in part and
concurring in result:
I concur in parts II, III, and IV of Judge Godbold's opinion
which hold that Shahar's rights of intimate and expressive
association have been burdened and that strict scrutiny is the
proper test to apply. For this reason, it is necessary to remand
the case to the district court. Nevertheless, I respectfully
disagree with Judge Godbold that the facts underlying Shahar's
association claims necessarily translate into a Free Exercise claim
that requires strict scrutiny. Thus, I do not join in Part V of
his opinion.
Furthermore, I disagree with Part VI of Judge Godbold's
opinion as it pertains to Shahar's Equal Protection claim.
Generally, the Equal Protection Clause of the Constitution requires
that a state classification be rationally related to a legitimate
state interest. Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct.
2326, 2331, 120 L. Ed. 2d 1 (1992); Panama City Medical Diagnostic
Ltd., 13 F.3d 1541, 1545 (11th Cir.)., reh. denied 21 F.3d 1127
(11th Cir.), cert. denied, --- U.S. ----, 115 S. Ct. 93, 130 L. Ed. 2d
44 (1994). A rational basis will not suffice, however, in cases
involving either a suspect class or a fundamental right. Kadrmas
v. Dickinson Pub. Schools, 487 U.S. 450, 457-58, 108 S. Ct. 2481,
2487-88, 101 L. Ed. 2d 399 (1988); Panama City, 13 F.3d at 1545. In
such a case, the strict scrutiny test must be applied. Many courts
include religion as a classification or fundamental right that
deserves strict scrutiny. See Droz v. Commissioner of I.R.S., 48
F.3d 1120, 1125 (9th Cir.1995) (discussing equal protection under
the Fifth Amendment); Steffan v. Perry, 41 F.3d 677, 689 n. 9
(D.C.Cir.1994); Olsen v. Commissioner, 709 F.2d 278, 283 (4th
Cir.1983) (discussing equal protection under the Fifth Amendment);
Seoane v. Ortho Pharmaceuticals, Inc., 660 F.2d 146, 149 (5th
Cir.1981); see also Johnson v. Robison, 415 U.S. 361, 375 n. 14,
94 S. Ct. 1160, 1169 n. 14, 39 L. Ed. 2d 389 (1974) (noting that the
free exercise of religion is a fundamental right under the
Constitution). Judge Godbold's opinion is based upon the argument
that Shahar has an Equal Protection claim due to her fundamental
right to exercise her religious beliefs. I believe this to be a
mistake. Shahar has not brought before us an Equal Protection
claim based on a fundamental religious right. Instead, as Judge
Kravitch points out in her opinion, Shahar is arguing her
homosexuality as a suspect class.1 Thus, since Shahar has failed
1
The portion of Shahar's appellate brief discussing Equal
Protection makes numerous references to a homosexual
classification claim, but it is devoid of any reference to a
religious fundamental rights claim. See, e.g., Appellant's Brief
(filed May 13, 1994) at 42 ("Shahar's equal protection claim
to raise religion as an issue with respect to her Equal Protection
claim, I join with Judge Kravitch in affirming that portion of the
district court's order.2
Turning to Shahar's contention that her homosexuality entitles
her to the designation of being in a suspect class, I note that
such an argument has been universally rejected by the courts that
have considered it. See, e.g., Equality Found. of Greater
Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261 (6th Cir.1995);
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir.1989), cert. denied, 494
U.S. 1004, 110 S. Ct. 1296, 108 L. Ed. 2d 473 (1990); Rich v.
Secretary of the Army, 735 F.2d 1220 (10th Cir.1984); see also
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d
563 (9th Cir.) (discussing issue in the context of the Fifth
Amendment), reh. denied, 909 F.2d 375 (9th Cir.1990). As pointed
out by Shahar, it is true that this circuit has not ruled on the
issue. Nevertheless, I agree with Judge Kravitch that the facts of
this case do not require us now to make a determination. The
evidence supports the district court's conclusion on summary
rests on her contention that, as a homosexual, she was judged by
Bowers ... differently than a heterosexual would have been
judged."), at 44 ("Shahar's claim, however, is precisely that her
conduct, as a homosexual, was evaluated differently."), at 45-46
("Here, Shahar's direct evidence of being judged differently as a
homosexual ... can fully establish the viability of her sexual
orientation discrimination claim ..."), at 47 ("All of the
background to Shahar's firing underscores that her acknowledged
relationship with another woman triggered differential, adverse
judgments about homosexuals versus heterosexuals ..."), and at 48
("Shahar urges ... that, under the governing criteria,
discrimination against gay people warrants heightened equal
protection scrutiny.").
2
I express no opinion as to the merits of Shahar's claim had
it been presented as a religious fundamental rights question.
judgment that Bowers did not revoke Shahar's job offer because of
her sexual orientation. Instead, the dispute arose because Bowers
believed that Shahar invoked the legal and civil significance of
being married to another female, which is inconsistent with Georgia
law.3 Therefore, I do not believe the evidence supports Shahar's
Equal Protection claim.
For the reasons set forth above, I concur in Judge Godbold's
opinion only to the extent that the burdens placed upon Shahar's
intimate and expressive association claims are subject to strict
scrutiny. Thus, I concur in the result that this case should be
remanded to the district court for further consideration.
KRAVITCH, Circuit Judge, concurring in part and dissenting in
part:
In my view, this case is not primarily about religion or
expression or equal protection. Rather, the constitutional
1
deprivation suffered by Shahar is the burdening of her First
Amendment right of intimate association. In the public employment
context, an employee's intimate association rights must be balanced
against the government's legitimate concerns with the efficient
functioning of its agencies. I therefore disagree with the
majority's holding that strict scrutiny ought to be applied in this
case. Nonetheless, utilizing a balancing test, I conclude that
3
Shahar does not challenge the state of the law as it exists
in Georgia with respect to same sex marriages.
1
The plaintiff-appellant and her partner legally changed
their surnames from "Brown" and "Greenfield," respectively, to
"Shahar," which they understood to mean in Biblical Hebrew "[t]he
act of seeking God." Shahar Dep. at 23. For the sake of
clarity, I will refer to the plaintiff-appellant as "Shahar" and
to her partner as "Greenfield."
Shahar is entitled to constitutional protection.
I. Intimate Association
A. Shahar's commitment ceremony and relationship with Greenfield is
an intimate association entitled to First Amendment
protection.
Intimate associations involve "choices to enter into and
maintain certain intimate human relationships." Roberts v. United
States Jaycees, 468 U.S. 609, 617-18, 104 S. Ct. 3244, 3249, 82
L. Ed. 2d 462 (1984). Such choices "must be secured against undue
intrusion by the State because of the role of such relationships in
safeguarding the individual freedom that is central to our
constitutional scheme." Id. In Roberts, the Supreme Court
enumerated several characteristics typical of relationships
entitled to constitutional protection as intimate associations:
"relative smallness, a high degree of selectivity in decisions to
begin and maintain the affiliation, and seclusion from others in
critical aspects of the relationship." Id. at 620, 104 S.Ct. at
3250. Family relationships, which "by their nature, involve deep
attachments and commitments to the necessarily few other
individuals with whom one shares not only a special community of
thoughts, experiences, and beliefs but also distinctively personal
aspects of one's life," "exemplify"—but do not exhaust—this
category of protected associations. Id.; see also Board of
Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 545, 107
S. Ct. 1940, 1946, 95 L. Ed. 2d 474 (1987) ("[W]e have not held that
constitutional protection is restricted to relationships among
family members."); Kenneth L. Karst, "The Freedom of Intimate
Association," 89 Yale L.J. 624, 629-37 (1980) (defining intimate
association as "a close and familiar personal relationship with
another that is in some significant way comparable to a marriage or
family relationship") (emphasis added). A relationship that fits
these descriptions is no less entitled to constitutional protection
just because it is between individuals of the same sex.
This court has taken an expansive view of the right of
intimate association under the First Amendment, protecting even
dating relationships. See Hatcher v. Bd. of Educ. & Orphanage, 809
F.2d 1546, 1558 (11th Cir.1987) ("[E]ven a public employee's
association choices as to whom to date enjoy constitutional
protection."); Wilson v. Taylor, 733 F.2d 1539, 1544 (11th
Cir.1984) ("We conclude that dating is a type of association which
must be protected by the first amendment's freedom of
association.").
I agree with the district court and the majority that the
relationship between Shahar and her partner qualifies as a
constitutionally protected intimate association. The ceremony was
to solemnize and celebrate a lifelong commitment between the two
women, who share not only an emotional bond but, as the majority
exhaustively describes, a religious faith.2 Even if Shahar and
Greenfield were not religious, I would still find that their
relationship involves the type of personal bond that characterizes
a First Amendment intimate association.3 We protect such
2
Shahar has described Greenfield as her "life partner,"
elaborating, "Fran is my best friend and she is my main
confidante, and there is just a certain closeness with her that I
don't share with others." Shahar Dep. at 5-6.
3
To avoid confusion, my view is that relationships
possessing the characteristics cataloged above—"smallness,"
associations because "the "ability independently to define one's
identity that is central to any concept of liberty' cannot truly be
exercised in a vacuum; we all depend on the "emotional enrichment
from close ties with others.' " Bowers v. Hardwick, 478 U.S. 186,
205, 106 S. Ct. 2841, 2851, 92 L. Ed. 2d 140 (1986) (Blackmun, J.,
dissenting) (quoting Roberts, 468 U.S. at 618, 104 S.Ct. at 3250).
Where intimacy and personal identity are so closely intertwined as
in the relationship between Shahar and Greenfield, the core values
of the intimate association right are at stake.
B. Shahar's intimate association rights were burdened by Bowers'
withdrawal of her job offer.
A public employee's freedom of association is burdened by
adverse employment action if the protected association was a
"substantial" or "motivating" factor in the employer's decision.
Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S. Ct.
568, 576, 50 L. Ed. 2d 471 (1977); Hatcher v. Board of Pub. Educ.,
4
809 F.2d 1546, 1558 (11th Cir.1987). Bowers argues that he
withdrew Shahar's offer of employment only because she publicly
"held herself out" as to be legally married, not because of the
"selectivity," "seclusion," "deep attachment[ ] and commitment[
]," etc.—warrant constitutional protection irrespective of (not
because of) the sexual orientation of the individuals involved.
4
Under Mt. Healthy causation analysis, even if the employee
proves that the conduct at issue is constitutionally protected
and was a "substantial factor" in the government's decision to
take adverse employment action, the government employer will
still prevail if it can show by a preponderance of the evidence
that it would have reached the same decision even in the absence
of the employee's protected conduct. Mt. Healthy, 429 U.S. at
285-87, 97 S.Ct. at 575-76. Nothing in the record of this case,
however, indicates that Bowers would have withdrawn Shahar's
employment offer if she had not planned to participate in the
commitment ceremony.
planned commitment ceremony or relationship per se, and therefore
that Shahar's right to associate with her partner was not
threatened. I agree with the district court, however, that
Shahar's "conduct ("holding herself out' as about to marry another
woman) is not sufficiently separate from her intimate association
(marrying another woman) to allow a finding that this association
was not burdened." Shahar v. Bowers, 836 F. Supp. 859, 863
(N.D.Ga.1993).
The evidence Bowers presents of Shahar's "holding herself out"
as legally married is less than compelling. As the majority
observes, Shahar has never asserted—and in fact has repeatedly
disclaimed—any civil or legal status as married. What Shahar did
do was plan and participate in a private, religious, out-of-state,
commitment ceremony. She did not place an announcement in the
newspaper or cast the ceremony as a political or religious rally.
Shahar did characterize her marital status as "engaged" and
identify Greenfield as her "future spouse" on a Department form,
the purpose of which was "to elicit information which might be
relevant to whether there would be some sort of conflict in [the
Department's] representation of" another part of state government.5
In so doing, Shahar provided the relevant information (Greenfield
was, in fact, employed by the state) as best she could within the
constraints of the standardized form, which in any case was filed
unread and would never have been visible to the public. Shahar
also chatted about "wedding" preparations with two Department
co-workers after encountering them by chance in a restaurant while
5
Bowers Dep. at 33-34.
she and Greenfield were planning the ceremony. Finally, for the
purpose of arranging her starting date, she notified a Department
administrator that she was "getting married" and changing her last
name to "Shahar," and she discussed the planned timing of her
"wedding."6 All of these mentions by Shahar of her planned
ceremony were reactive, responding to requests for information.7
Given the limited extent of Shahar's pre-termination
publicizing of her commitment ceremony in terms that could be
misunderstood as implying a legal relationship, I conclude, as did
the district court, that Shahar "pursued her desired association
only at the price of her desired employment." Shahar, 836 F. Supp.
at 863.
6
Shahar Dep. at 77.
7
Shahar's occasional use of the words "marriage" and
"wedding" to describe the ceremony she and Greenfield were
preparing to undertake hardly amounts to flaunting Georgia law.
Neither "marriage" nor "wedding" is a proprietary legal term.
Rabbi Friedlander testified that "marriage" is the appropriate
English translation of the Hebrew term for the Jewish wedding
rituals followed by Shahar and Greenfield. Friedlander Dep. at
48-50. And one of the English meanings of "marriage" is simply
"an intimate or close union." Webster's Third New Int'l
Dictionary (1961).
Shahar might have been better served had she been
consistent in referring to Greenfield as her "partner," and
the event at issue as a "commitment ceremony." On the other
hand, in response to a deposition question about her use of
the word "engaged" to describe her relationship with Shahar,
Greenfield replied:
We are limited by language. It is sort of derived for
heterosexuals. We use the language because we don't
have a better one to explain what we are talking about,
but it describes that there is a sense of a commitment
relationship, there is a union to take place, this
person is part of my family....
Greenfield Dep. at 28.
C. Intimate association claims in the public employment context are
subject to a balancing test.
The majority determines that because Shahar was involved in an
intimate association akin to marriage and because the relationship
was intertwined with religion, strict scrutiny should be applied.
While I agree that heightened scrutiny is appropriate in cases
where a public employee's First Amendment association rights have
been burdened, it is also necessary to take into account the
legitimate interests of government employers. These competing
concerns lead me to a "balancing" analysis similar to both the test
described in Pickering v. Board of Educ., 391 U.S. 563, 88 S. Ct.
173, 20 L. Ed. 2d 811 (1968), and strict scrutiny as it has been
applied in public employment cases.
This case must be understood in light of the public employment
context in which it arises. "[T]he government as employer indeed
has far broader powers than does the government as sovereign."
Waters v. Churchill, --- U.S. ----, ----, 114 S. Ct. 1878, 1886, 128
L. Ed. 2d 686 (1994) (plurality opinion). The supplemental power
afforded the government over its employees is justified by "the
practical realities of government employment," id. at ----, 114
S.Ct. at 1886, and the fact that "the government is employing
someone for the very purpose of effectively achieving its goals,"
id. at ----, 114 S.Ct. at 1888. "The key to First Amendment
analysis of government employment decisions ... is this: The
government's interest in achieving its goals as effectively and
efficiently as possible is elevated from a relatively subordinate
interest when it acts as sovereign to a significant one when it
acts as employer." Id.
Neither the Supreme Court nor the Eleventh Circuit has
determined the precise standard to be applied to an employee's
intimate association claim against a government employer. As the
majority points out, the court in McCabe v. Sharrett, 12 F.3d 1558
(11th Cir.1994), identified and discussed the three most likely
8
standards of review for this type of case: strict scrutiny,
Pickering,9 and Elrod-Branti.10 The issue of which standard to
apply in intimate association cases remains unsettled after McCabe,
however, for in that case the court determined that the employee's
association rights were not violated under any of the three
standards considered. McCabe, 12 F.3d at 1569-74. In reaching
this conclusion, the court noted that "[a]ll three of these schemes
provide the government employer some opportunity to demonstrate
8
Under strict scrutiny, the government must show that its
action is "narrowly tailored to serve a compelling government
interest." McCabe, 12 F.3d at 1566.
9
See Pickering v. Board of Educ., 391 U.S. 563, 88 S. Ct.
173, 20 L. Ed. 2d 811 (1968). The Pickering analysis was developed
in the context of an adverse employment action on the basis of a
public employee's speech. Under Pickering, courts balance "the
interests of the [employee], as a citizen, in commenting on
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees." McCabe, 12 F.3d at 1564
(quoting Pickering, 391 U.S. at 568, 88 S.Ct. at 1734).
10
See Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49
L. Ed. 2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S. Ct.
1287, 63 L. Ed. 2d 574 (1980). Under the Elrod-Branti analysis,
which was developed in the context of an adverse employment
action based upon a public employee's political affiliation,
courts "look to whether party affiliation is important to
effective performance of the job at issue." McCabe, 12 F.3d at
1565.
Because the Elrod-Branti analysis has been limited to
the context of political patronage, I will exclude it from
further consideration in the intimate association context.
that governmental interests justified the challenged employment
action." Id. at 1569 n. 14.
A survey of intimate association cases (and analogous privacy
cases) in the context of public employment reveals that courts,
irrespective of the doctrinal test being applied, have consistently
balanced the interest of the government employer in the efficient
functioning of its office against the employee's interest in
pursuing his or her constitutionally protected freedom.11
11
See Whisenhunt v. Spradlin, 464 U.S. 965, 970-72, 104
S. Ct. 404, 408-09, 78 L. Ed. 2d 345 (1983) (Brennan, J., joined by
Marshall and Blackmun, JJ., dissenting from denial of cert.)
(calling for heightened scrutiny for employees' due process
privacy claims, but recognizing that "[p]ublic employers ...
deserve considerable latitude in enforcing codes of conduct");
Kelley v. Johnson, 425 U.S. 238, 244-49, 96 S. Ct. 1440, 1444-46,
47 L. Ed. 2d 708 (1976) (balancing police officer's liberty
interest in personal appearance against police department's need
to regulate the hair length of its officers, after suggesting
that state employees may be subject to more restrictive
regulations where their less fundamental rights are at stake);
Stough v. Crenshaw County Bd. of Educ., 744 F.2d 1479 (11th
Cir.1984) (applying Pickering balancing test to school board
employee's constitutional challenge to policy prohibiting school
board employees from sending their children to private schools);
Wilson v. Taylor, 733 F.2d 1539, 1542-44 (11th Cir.1984)
(assuming that Pickering is the appropriate standard for police
officer's intimate association claim); Dike v. School Bd., 650
F.2d 783, 787 (5th Cir. Unit B 1981) (nominally applying strict
scrutiny to school board's burden on employee's liberty interest
in breast-feeding her child, but remanding for consideration of
whether school board's interests in avoiding disruption of
educational process, ensuring that teachers perform their duties
without distraction, and avoiding potential liability for
accidents were strong enough to justify the burden); Fyfe v.
Curlee, 902 F.2d 401 (5th Cir.1990) (applying Pickering balancing
to public school employee's First Amendment privacy claim arising
out of termination due to decision to send her daughter to
private school); Thorne v. City of El Segundo, 726 F.2d 459,
468-72 (9th Cir.1983) (applying sliding-scale scrutiny, so that
"[t]he more fundamental the rights on which the state's
activities encroach, the more weighty must be the state's
interest in pursuing that course of conduct," to employee's
privacy and intimate association claims); Kukla v. Village of
Antioch, 647 F. Supp. 799, 803-12, 806 (N.D.Ill.1986) (analyzing
employee's intimate association claim by "weighing the amount of
I conclude that in the context of a public employee's intimate
association claim based on adverse employment action, the
heightened scrutiny applied by some courts is no different in
practice from the Pickering balancing test applied by others. Both
necessitate balancing the employee's constitutional association
rights against the government's interest in the efficient
functioning of its agency. Although Pickering and its direct
descendants are free speech cases, their motivating
principle—optimizing protection of government employees'
fundamental constitutional rights and the effective provision of
public services by government agencies—applies equally to intimate
association cases under the First Amendment. Like core First
Amendment speech, which the Supreme Court has protected in the
Pickering line of cases as a "fundamental right" of which citizens
must not be deprived just "by virtue of working for the
government," Connick v. Myers, 461 U.S. 138, 147, 103 S. Ct. 1684,
1690, 75 L. Ed. 2d 708 (1983), the right of intimate association is
a fundamental aspect of personal liberty, Roberts, 468 U.S. 609-22,
104 S. Ct. 3249-51, 82 L. Ed. 2d 462. But it is also true that an
employee may disrupt the efficient workings of a government office
constitutional protection given to the conduct in question
against the extent to which restriction of it is necessary for
the government agency to function"); Briggs v. North Muskegon
Police Dept., 563 F. Supp. 585 (W.D.Mich.1983) (balancing police
officer's intimate association and privacy rights against police
department's interest in officer's job performance), aff'd
without opinion, 746 F.2d 1475 (6th Cir.1984), cert. denied, 473
U.S. 909, 105 S. Ct. 3535, 87 L. Ed. 2d 659 (1985); Childers v.
Dallas Police Dept., 513 F. Supp. 134, 139-42 (N.D.Tex.1981)
(applying Pickering balancing test to city employee's First
Amendment association claim), aff'd without opinion, 669 F.2d 732
(5th Cir.1982).
with First Amendment conduct as well as speech. Balancing is
equally appropriate in both contexts.12
D. Shahar's intimate association rights outweigh Bowers' legitimate
interests in this case.
The district court applied the Pickering balancing test to
Shahar's intimate association claims. The court correctly noted
that Bowers'
asserted interests embody two over-arching concerns: (1)
public credibility, specifically the need to avoid the
appearance of endorsing conflicting interpretations of Georgia
law, and (2) internal efficiency, specifically the need to
employ attorneys who act with discretion, good judgment, and
in a manner which does not conflict with the work of other
Department attorneys.
Shahar, 836 F. Supp. at 864. Proceeding to find sufficient
evidentiary support for Bowers's articulated concerns, the district
court concluded that "the unique circumstances of this case show
12
One aspect of how Pickering free speech analysis maps onto
intimate association cases might be misleading. In Connick, the
Supreme Court made clear that a government employee can be
protected under Pickering only if the speech in question relates
to "matters of public concern." 461 U.S. at 147, 103 S.Ct. at
1690. Obviously, it would be paradoxical to require a government
employee's intimate association to relate to a matter of public
concern as a threshold requirement for constitutional protection.
The point of the Connick requirement, however, is simply to
operationalize Pickering 's purpose of upholding only the more
fundamental rights of public employees and not turning federal
courts into general review boards for personnel decisions. Id.
Speech on matters of public concern is given categorical
protection under Pickering and Connick because this type of
speech "occupies "the highest rung of the hierarchy of First
Amendment values.' " Id. at 145, 103 S.Ct. at 1689 (quoting
Carey v. Brown, 447 U.S. 455, 467, 100 S. Ct. 2286, 2293, 65
L. Ed. 2d 263 (1980)).
Therefore, inasmuch as Connick may be instructive in
the intimate association context, it reaffirms the
appropriateness of the sliding-scale scrutiny inherent in a
balancing test that weighs intimate associations closer to
the core of the First Amendment right more heavily than
those closer to the periphery.
that [Bowers's] interests in the efficient operation of Department
outweigh [Shahar's] interest in her intimate association with her
female partner." Id. at 865. Absent from the district court's
"balancing" discussion, however, is an explicit juxtaposition of
Shahar's intimate association rights or any discussion of their
countervailing weight.
The relationship celebrated through Shahar's and Greenfield's
commitment ceremony is close to the core of the constitutional
right to intimate association, for it exemplifies the
characteristics determined by the Supreme Court to warrant special
protection. In Roberts, the Court explained that between the poles
of "family" relationships and large business enterprises "lies a
broad range of human relationships that may make greater and lesser
claims to constitutional protection from particular incursions by
the State." Id. at 618-22, 104 S.Ct. at 3250-51. Because Shahar's
commitment ceremony and relationship with Greenfield fall close to
the "family" end of this continuum, her intimate association rights
weigh heavily on the balance.
On the other hand, Bowers is the chief legal officer of the
state of Georgia, with responsibility for "seeing that State
agencies uphold the law and [for] upholding the law in general."13
Although Georgia does not have a statute which prohibits same-sex
"marriages," and Shahar violated no law by planning and
participating in the commitment ceremony with her partner, the
state does not officially recognize such a union and would not
13
Bowers Dep. at 42.
authorize the issuance of a marriage license to a same-sex couple.14
Bowers does not allege that Shahar's planned ceremony caused
any actual disruption of the functioning of the Georgia Department
of Law. Although we must consider a government employer's
"reasonable predictions of disruption," Waters, --- U.S. at ----,
114 S. Ct. at 1887, the employer's assessment of harm should be
discounted by the probability of its realization in order to weigh
it fairly against an actual burden on an employee's constitutional
rights. Certainly, the mere "subjective apprehension that [the
employee's conduct] might have an adverse impact upon" the
government agency will not outweigh such a burden. Williams v.
Roberts, 904 F.2d 634, 638 (11th Cir.1990).
Bowers first determined that Shahar's "holding herself out as
"married' to another woman ... indicated a lack of discretion
regarding the Department's public position on the proper
application for the [Georgia] sodomy statute and Georgia's marriage
laws."15 Shahar's pre-termination conduct, however, seems unrelated
to the Department's legal positions. Second, Bowers characterized
Shahar's representations about her commitment ceremony as
"political conduct demonstrating that she did not believe in and
was not going to uphold the laws regarding marriage and sodomy."16
14
Nor does Georgia recognize same-sex common-law marriages.
See O.C.G.A. § 19-3-1; Georgia Osteopathic Hosp., Inc. v.
O'Neal, 198 Ga.App. 770, 403 S.E.2d 235, 243 (1991) ("In order
for a common-law marriage to come into existence, the parties
must be able to contract, must agree to live together as man and
wife, and must consummate the agreement.").
15
Br. of Appellee at 12-13.
16
Br. of Appellee at 13; Bowers Dep. at 62-63.
But there is no evidence in the record to support such an
inference; to the contrary, Shahar has never asserted any legal
benefit from her marriage, and her commitment ceremony was far from
a political demonstration or an act of civil disobedience. In any
case, the Department has a rule against certain political
activities, which Shahar had understood to preclude advocacy on
behalf of, for instance, gay rights.17 Third, Bowers makes the
general assertion that Shahar's presence in the Department would
have a "disruptive" effect on her co-workers.18 Again, there is no
evidence in support of this prediction in the record, and some
evidence against: Shahar's summer clerkship with the Department
appears to have been a success.
Bowers further contends that he was motivated to withdraw
Shahar's job offer by the concern that the Department would be
perceived by the public as disregarding Georgia law as it pertains
to homosexual marriages (which are not recognized) and sodomy
(which is illegal).19 Again, Shahar's commitment ceremony and
relationship were not, before the inception of this case, thrust
into the public domain. Even if members of the public were to
become aware of and misunderstand the asserted status of the
relationship between Shahar and her partner, it is questionable
whether they would infer that the Department, by employing Shahar,
was acquiescing in the legally legitimate status of the union.
17
Br. of Appellee at 5; Shahar Dep. at 60-61.
18
Br. of Appellee at 13; Bowers Dep. at 90-91.
19
The Georgia consensual sodomy statute, O.C.G.A. § 16-6-2,
which makes oral and anal sex illegal, applies equally to
homosexuals and heterosexuals.
Shahar neither violated Georgia's laws pertaining to marriage nor
attempted to avail herself of any legal rights or privileges
reserved for legally married people. And there is no evidence that
Shahar violated Georgia's sodomy law.20 Catering to private
prejudice is not a legitimate government interest. See City of
Cleburne v. Cleburne Living Center, 473 U.S. 432, 448, 105 S. Ct.
3249, 3259, 87 L. Ed. 2d 313 (1985) ("mere negative attitudes, or
fear, unsubstantiated by factors which are properly cognizable [by
the government], are not permissible bases" for decisionmaking);
Palmore v. Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 1882, 80
L. Ed. 2d 421 (1984) ("Private biases may be outside the reach of the
law, but the law cannot, directly or indirectly, give them
effect.").
Although the unique status of Bowers' office makes this a
close case, I conclude that Shahar's constitutional interest in
pursuing her intimate association outweighs any threat to the
efficient operation of the Georgia Department of Law. As the
ultimate balancing under Pickering is a question of law for this
court to decide de novo, Kurtz v. Vickrey, 855 F.2d 723, 732 (11th
20
Bowers admits that he has no knowledge of Shahar's actual
sexual behavior. Bowers Dep. at 69. Instead, in considering
whether to withdraw Shahar's job offer, he claims to have relied
on "the public perception that "the natural consequence of a
marriage is some sort of sexual conduct'... and if it's
homosexual, it would have to be sodomy." Brief of Appellee at
10-11; Bowers Dep. at 80-81. The bare description of a person
as "homosexual," however, is hardly sufficient to support an
inference that he or she has engaged in the specific conduct
violative of Georgia's sodomy law. Cf. Able v. United States,
880 F. Supp. 968, 976 (E.D.N.Y.1995) ("This court concludes that
under the First Amendment a mere statement of homosexual
orientation is not sufficient proof of intent to commit acts as
to justify the initiation of discharge proceedings.").
Cir.1988), I would reverse summary judgment in favor of Bowers and
grant summary judgment in favor of Shahar on her intimate
association claim.
II. Expressive Association
"Expressive" association claims involve the "right to
associate for the purpose of engaging in those activities protected
by the First Amendment—speech, assembly, petition for the redress
of grievances, and the exercise of religion." Roberts, 468 U.S. at
618, 104 S.Ct. at 3249. The right of expressive association
protects communal pursuit of the rights expressly protected by the
First Amendment. Id. at 618, 622, 104 S. Ct. at 3249, 3252; McCabe
v. Sharrett, 12 F.3d 1558, 1563 (11th Cir.1994). In this case,
Shahar's commitment ceremony constituted an association for the
purpose of, at least in part, engaging in the exercise of religion,
a protected First Amendment activity.21 I agree with the majority
that Bowers' withdrawal of Shahar's job offer burdened her right of
expressive association.
This court has stated that the Pickering balancing test is the
correct standard of review when a public employer burdens an
employee's First Amendment right of expressive association.
Hatcher v. Board of Public Educ. and Orphanage, 809 F.2d 1546, 1559
& n. 26 (11th Cir.1987). The majority now determines thatBoard of
Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 549, 107
21
On the facts of this case, I do not believe that Shahar
has stated a viable expressive association claim based on social
or political aspects of her commitment ceremony and relationship
with her partner. In any case, an association claim based on
public expression would be in tension with Shahar's more
compelling intimate association claim.
S.Ct. 1940, 1948, 95 L. Ed. 2d 474 (1987), overruled Hatcher on this
point because the Supreme Court in Rotary applied a compelling
interest test to the plaintiff's expressive association claim.
Rotary, however, was not an employment case, and, as explained
above, in the employment context the state has "far broader powers
than does the government as sovereign." Waters, --- U.S. at ----,
114 S. Ct. at 1886. Because I believe that this court continues to
be bound by Hatcher, Pickering, not strict scrutiny, should be
applied in reviewing Shahar's expressive association claim.22
"The intrinsic and instrumental features" of expressive and
intimate association "may, of course, coincide." Roberts, 468 U.S.
at 618, 104 S.Ct. at 3249. In this case, as the district court
found, Shahar's expressive association claim overlaps not just her
intimate association claim but also her free exercise claim. I
agree with the district court that Shahar's expressive association
claim "offers no greater claim to constitutional protection than
[her] intimate association claim," Shahar, 836 F. Supp. at 862,
given that Pickering should be applied to both, and therefore I
would not address it any further.
22
Connick 's public concern requirement does not stand in
the way of Shahar's expressive association claim in this circuit.
See Hatcher, 809 F.2d at 1558 ("We conclude, however, that
Connick is inapplicable to freedom of [expressive] association
claims."). Other circuits have applied the Connick requirement
to expressive association claims. See Griffin v. Thomas, 929
F.2d 1210, 1212-14 (7th Cir.1991); Boals v. Gray, 775 F.2d 686,
691-93 (6th Cir.1985); see also Clark v. Yosemite Community
College Dist., 785 F.2d 781, 791 (9th Cir.1986) (noting that
because defendant had not raised the question, the court had no
need to decide whether the plaintiff's "right of association with
the union touches on a matter of public concern so as to give
rise to a cause of action in federal court for a violation of
First Amendment rights").
III. Free Exercise of Religion
I would not remand for reconsideration on the free exercise
claim. Rather, because in my view this case is not about the free
exercise of religion, and because the violation of Shahar's
intimate association rights is dispositive, I would not reach this
issue.
IV. Equal Protection
Shahar's equal protection claim is based on the contention
that Bowers withdrew her job offer, at least in part, because she
is a homosexual. Shahar argues that classifications based on
sexual orientation should be subject to strict scrutiny under the
Equal Protection Clause.23
The facts of this case, however, do not support Shahar's
contention that Bowers withdrew her offer because of her sexual
23
Judge Godbold would hold that strict scrutiny applies to
Shahar's equal protection claim because Shahar's fundamental
right of free exercise of religion has been burdened. This equal
protection analysis is both flawed and superfluous. Shahar does
not argue, and the record does not indicate, that she was treated
differently because of her religion. See, e.g., Elston v.
Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th
Cir.1993) ("To establish an equal protection clause violation, a
plaintiff must demonstrate that a challenged action was motivated
by an intent to discriminate.") (citing Village of Arlington
Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265, 97
S. Ct. 555, 563, 50 L. Ed. 2d 450 (1977); Washington v. Davis, 426
U.S. 229, 238-48, 96 S. Ct. 2040, 2047-52, 48 L. Ed. 2d 597 (1976)).
Nor did Bowers classify employees in the manner contemplated by
equal protection principles. See, e.g., Nordlinger v. Hahn, 505
U.S. 1, 10, 112 S. Ct. 2326, 2331, 120 L. Ed. 2d 1 (1992) (stating
the general equal protection principle that rational basis review
applies "unless a classification warrants some form of heightened
review because it jeopardizes exercise of a fundamental right or
categorizes on the basis of an inherently suspect
characteristic") (emphasis added). Moreover, even if Shahar
could make out an equal protection claim based on her fundamental
right of free exercise, this claim would be subsumed by her
direct free exercise claim; no greater constitutional protection
would result.
orientation.24 Bowers asserted that he withdrew Shahar's job offer
only because of conduct surrounding her commitment ceremony and
relationship with her partner, not because of her status as a
homosexual. The record establishes that the Department has neither
a policy nor a proven practice of excluding homosexuals from
employment, and that Bowers generally does not inquire into the
sexual practices or preferences of applicants and employees.
Furthermore, a number of Department employees, including at least
two in management positions (but not, apparently, Bowers himself),
were aware that Shahar was a lesbian when the offer of employment
was extended. Although Shahar offers some indirect evidence of
divergent attitudes in the Department towards homosexuals and
heterosexuals, she has not shown that she was treated differently,
for equal protection purposes, on the basis of sexual orientation.25
Her equal protection claim thus fails.
Accordingly, I CONCUR in part and DISSENT in part.
24
Shahar further argues that disputed issues of material
fact should have precluded summary judgment. After reviewing the
record, however, I agree with the district court that the
pertinent facts are undisputed.
25
Thus, we need not reach the issue of whether homosexuals
constitute a suspect class entitled to strict scrutiny for equal
protection claims.