Shahar v. Bowers

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.
May 30, 1997.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:91-cv-
2397-RCF), Richard C. Freeman, Judge.
Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH,
DUBINA, BLACK, CARNES and BARKETT, Circuit Judges, and GODBOLD and KRAVITCH*,
Senior Circuit Judges.
EDMONDSON, Circuit Judge:
In this government-employment case, Plaintiff-Appellant contends that the Attorney General
of the State of Georgia violated her federal constitutional rights by revoking an employment offer
because of her purported "marriage"1 to another woman. The district court concluded that Plaintiff's
rights had not been violated. We affirm.
Given the culture and traditions of the Nation, considerable doubt exists that Plaintiff has a
constitutionally protected federal right to be "married" to another woman: the question about the
right of intimate association. See generally F/W PBS, Inc. v. City of Dallas, 493 U.S. 215, 237-39,
110 S.Ct. 596, 611, 107 L.Ed.2d 603 (1990); Roberts v. United States Jaycees, 468 U.S. 609, 618-
19, 104 S.Ct. 3244, 3250, 82 L.Ed.2d 462 (1984). Given especially that Plaintiff's religion requires
a woman neither to "marry" another female—even in the case of lesbian couples—nor to marry at
all, considerable doubt also exists that she has a constitutionally protected federal right to be
*
Honorable Phyllis A. Kravitch heard oral argument in this case on 23 October 1996 as a
judge on active status. She took senior status on 31 December 1996 and has elected to
participate in this decision pursuant to 28 U.S.C. § 46(c).
1
For clarity's sake, we use the words "marriage" and "wedding" (in quotation marks) to refer
to Shahar's relationship with her partner; we use the word marriage (absent quotation marks) to
indicate legally recognized heterosexual marriage.
"married" to another woman to engage in her religion: the question about the right of expressive
association. See generally Salvation Army v. Dept. of Community Affairs of State of N.J., 919 F.2d
183, 198-200 (3d Cir.1990).2 See also Lyng v. Northwest Indian Cemetery Protective Assn., 485
U.S. 439, 449-51, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 534 (1988); Employment Div., Dept. of Human
Res. v. Smith, 494 U.S. 872, 883-85, 110 S.Ct. 1595, 1603, 108 L.Ed.2d 876 (1990); Bowen v. Roy,
476 U.S. 693, 699-701, 106 S.Ct. 2147, 2152, 90 L.Ed.2d 735 (1986) (plurality opinion) ("Never
to our knowledge has the Court interpreted the First Amendment to require the Government itself
to behave in ways that the individual believes will further his or her spiritual development or that
of his or her family.") (emphasis in original).3
Because even a favorable decision on these constitutional questions would entitle Plaintiff
to no relief in this case, powerful considerations of judicial restraint call upon us not to decide these
constitutional issues. See e.g., Lyng, 485 U.S. at 443-46, 108 S.Ct. at 1323 ("A fundamental and
longstanding principle of judicial restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them."); Employment Div., Dept. of Human Res.
v. Smith, 485 U.S. 660, 673-74, 108 S.Ct. 1444, 1452, 99 L.Ed.2d 753 (1988); City of Mesquite v.
2
These doubts are suggested by a variety of considerations, to state briefly a few: (1) where
"rights" are not set out in the Constitution's text, we must be especially cautious about creating
rights merely because they might seem like a good idea to us or because some part of the
population believes them to be a good idea. See Bowers v. Hardwick, 478 U.S. 186, 194, 106
S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986) ("The Court is most vulnerable and comes nearest to
illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots
in the language or design of the Constitution."); (2) we are now in the two hundred and
twenty-first year of the independence of the Nation and well over a century beyond the adoption
of the Civil War Amendments, including the Fourteenth Amendment, to the Constitution, yet no
federal appellate court or state supreme court has recognized the federal rights of same-sex
marriage claimed by Plaintiff; (3) the institution of marriage has been the source before of
constitutional controversy in which the challenge was made that the institution of marriage
involved some combination other than one man and one woman. The advocates of polygamy,
we assume, were no less sincere than the advocates of same-sex marriage, and they too had some
religious arguments for their views. Yet, the Supreme Court repeatedly held that the
Constitution provides no protection to polygamous marriages. See e.g., Reynolds v. United
States, 98 U.S. 145, 166-167, 25 L.Ed. 244 (1878) (Free Exercise Clause does not require that
"those who make polygamy a part of their religion are excepted from the operation of the
statute" criminalizing polygamy).
3
Though the Bowen opinion was a plurality opinion, a majority of the Court joined in the
portion of the opinion quoted above.
Aladdin's Castle, Inc., 455 U.S. 283, 293-95, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152 (1982) ("[T]his
self-imposed limitation on the exercise of this Court's jurisdiction has an importance to the
institution that transcends the significance of particular controversies.") So, today we do stop short
of making a final decision about such claimed rights. Instead, we assume (for the sake of argument
only) that Plaintiff has these rights; but we conclude that the Attorney General's act—as an
employer—was still lawful.
I.
The facts are not much in dispute; but we accept Plaintiff's view when there is uncertainty.
Plaintiff Robin Joy Shahar is a woman who has "married" another woman in a ceremony performed
by a rabbi within the Reconstructionist Movement of Judaism. According to Shahar, though the
State of Georgia does not recognize her "marriage" and she does not claim that the "marriage" has
legal effect, she and her partner consider themselves to be "married."
Since August 1981, Defendant-Appellee Michael J. Bowers has been the Attorney General
of the State of Georgia, a statewide elective office. He has been elected to the office four times. As
the Attorney General, Bowers is the chief legal officer of the State of Georgia and head of the
Georgia Department of Law (the "Department"). His responsibilities include enforcing the laws of
the State by acting as a prosecutor in certain criminal actions; conducting investigations;
representing Georgia, its agencies and officials in all civil litigation (including habeas corpus
matters); and providing legal advice (including advice on the proper interpretation of Georgia law)
to Georgia's executive branch.
While a law student, Shahar spent the summer of 1990 as a law clerk with the Department.4
In September 1990, the Attorney General offered Shahar the position of Staff Attorney when she
graduated from law school.5 Shahar accepted the offer and was scheduled to begin work in
4
When she was employed by the Department as a summer clerk and when she was offered a
position with the Department, Shahar was known as "Robin Brown." Following her "wedding,"
she and her partner changed their last names to "Shahar."
5
"To carry out the functions of the Attorney General and the Department of Law," section 45-
15-30 of the Code of Georgia empowers the Attorney General to hire various subordinate
lawyers within the Department. Section 45-15-31(a) provides that all such subordinate attorneys
September 1991.
In the summer of 1990, Shahar began making plans for her "wedding." Her rabbi announced
the expected "wedding" to the congregation at Shahar's synagogue in Atlanta. Shahar and her
partner invited approximately 250 people, including two Department employees, to the "wedding."
The written invitations characterized the ceremony as a "Jewish, lesbian-feminist, out-door
wedding." The ceremony took place in a public park in South Carolina in June 1991.
In November 1990, Shahar filled out the required application for a Staff Attorney position.
In response to the question on "marital status," Shahar indicated that she was "engaged." She altered
"spouse's name" to read "future spouse's name" and filled in her partner's name: "Francine M.
Greenfield." In response to the question "Do any of your relatives work for the State of Georgia?"
she filled in the name of her partner as follows: "Francine Greenfield, future spouse."6
Sometime in the spring of 1991, Shahar and her partner were working on their "wedding"
invitations at an Atlanta restaurant. While there, they ran into Elizabeth Rowe and Susan
Rutherford. Rowe was employed by the Department as a paralegal, Rutherford as an attorney.
Rowe was invited to, and did attend, Shahar's ceremony. The four women had a brief conversation,
which included some discussion of the "wedding" preparations.
In June 1991, Shahar told Deputy Attorney General Robert Coleman that she was getting
married at the end of July, changing her last name, taking a trip to Greece and, accordingly, would
not be starting work with the Department until mid-to-late September. At this point, Shahar did not
say that she was "marrying" another woman. Senior Assistant Attorney General Jeffrey Milsteen,
who had been co-chair of the summer clerk committee, was in Coleman's office at the time and
heard Coleman congratulate Shahar. Milsteen later mentioned to Rutherford that Shahar was getting
married. Rutherford then told Milsteen that Shahar was planning on "marrying" another woman.
This revelation caused a stir.
"shall be appointed by the Attorney General for such periods of time as he deems advisable" and
"may be removed by the Attorney General."
6
Greenfield was employed by a state university at the time.
Senior aides to the Attorney General became concerned about what they viewed as potential
problems in the office resulting from the Department's employment of a Staff Attorney who
purported to be part of a same-sex "marriage." As the Attorney General was out of the office that
week, the five aides held several meetings among themselves to discuss the situation.
Upon the Attorney General's return to the office, he was informed of the situation. He held
discussions with the senior aides, as well as a few other lawyers within the Department. After much
discussion, the Attorney General decided, with the advice of his senior lawyers, to withdraw
Shahar's job offer. In July 1991, he did so in writing. The pertinent letter stated that the withdrawal
of Shahar's offer:
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 chief legal officer of
this state, inaction on my part would constitute tacit approval of this purported marriage and
jeopardize the proper functioning of this office.
The Attorney General and his staff have also indicated (in depositions taken in the present
action) that, after weighing the facts and relevant considerations, they concluded that Shahar's
same-sex "marriage" would create the appearance of conflicting interpretations of Georgia law and
affect public credibility about the Department's interpretations; interfere with the Department's
ability to handle controversial matters; interfere with the Department's ability to enforce Georgia's
sodomy law; and, in general, create difficulties maintaining the supportive working relationship
among the office lawyers that is necessary for the proper functioning of the Department. Also,
following her decision to participate in a controversial same-sex "wedding," the Attorney General
and his staff had serious doubts about the quality of Shahar's judgment in general.
Shahar brought the present action against the Attorney General, individually and in his
official capacity, seeking both damages and injunctive relief (including "reinstatement"). She said
revoking her offer violated her free exercise and free association rights and her rights to equal
protection and substantive due process.7
Bowers moved for summary judgment on all causes of action. On that same day, Shahar
7
On appeal, Shahar does not contest the dismissal of her substantive due process claim.
moved for partial summary judgment.8 The district court granted the Attorney General's motion for
summary judgment and denied Shahar's.
II.
Even when we assume, for argument's sake, that either the right to intimate association or
the right to expressive association or both are present, we know they are not absolute. Cf. Board of
Comm'rs, Wabaunsee Cty. v. Umbehr, --- U.S. ----, ----, 116 S.Ct. 2342, 2347, 135 L.Ed.2d 843(1996) ("While protecting First Amendment freedoms, we have, however, acknowledged that the
First Amendment does not create property or tenure rights, and does not guarantee absolute freedom
of speech.")9 Georgia and its elected Attorney General also have rights and duties which must be
taken into account, especially where (as here) the State is acting as employer. See e.g., Rankin v.
McPherson, 483 U.S. 378, 384-86, 107 S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987) ("[P]ublic
employers are employers, concerned with the efficient function of their operations; review of every
personnel decision made by a public employer could, in the long run, hamper the performance of
public functions."). We also know that because the government's role as employer is different from
its role as sovereign, we review its acts differently in the different contexts. See Waters v. Churchill,
511 U.S. 661, 675-76, 114 S.Ct. 1878, 1888, 128 L.Ed.2d 686 (1994) (plurality opinion) ("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.") In
reviewing Shahar's claim, we stress that this case is about the government acting as employer.
A.
Shahar argues that we must review the withdrawal of her job offer under strict scrutiny. The
only precedent to which Shahar refers us for the proposition that strict scrutiny is to be applied to
8
Shahar moved for summary judgment on her freedom of association and free exercise claims.
9
The Supreme Court has identified the origin of the right to intimate association as First
Amendment freedom of association. See Board of Dirs. of Rotary Intern. v. Rotary Club, 481
U.S. 537, 545-47, 107 S.Ct. 1940, 1946, 95 L.Ed.2d 474 (1987).
the government as employer is Dike v. School Board, 650 F.2d 783 (5th Cir. Unit B 1981). In Dike,
the Fifth Circuit—our predecessor—implied that a school district's refusal to allow a teacher to
breast-feed her child on her lunch hour must withstand strict scrutiny. Id. at 787 ("[T]he school
board may establish by appropriate pleading and proof that its regulations ... as applied to teachers
who breastfeed their children during their non-duty time, further sufficiently important state interests
and are closely tailored to effectuate only those interests.").10 To the extent that Dike might be
interpreted as requiring strict scrutiny review of a government employee's freedom of intimate
association claim, it misstates the appropriate standard; and we overrule it now.11
We also note that the Supreme Court recently rejected a similar argument in an analogous
case. In Board of Comm'rs, Wabaunsee Cty. v. Umbehr, --- U.S. ----, 116 S.Ct. 2342, 135 L.Ed.2d
843 (1996), the Court held that government contractors are protected from termination or failure to
renew their contracts for exercising their free speech rights and that the Pickering balancing test12
is the appropriate standard for determining whether a First Amendment violation has occurred.13
10
In Dike, the district court had dismissed the teacher's complaint on the ground that no
constitutionally protected interest was involved. The Dike court's actual holding was that she
had stated a cause of action and that further proceedings were necessary. Id. at 785.
11
In her concurring opinion when the case was before our three-judge panel, Judge Kravitch
characterized the Dike opinion this way: "nominally applying strict scrutiny to school board's
burden on employee's liberty interest in breast-feeding her child, but remanding for
reconsideration of whether school board's interest 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." Shahar v. Bowers, 70 F.3d 1218, 1231 n.
11 (11th Cir.1995), vacated 78 F.3d 499 (1996). See also id. at 1231 ("A survey of intimate
association cases (and analogous privacy cases) in the context of 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.") We agree that Dike, given the case's
procedural posture on appeal, is not clear about what, if anything, it actually decides about the
applicability of strict scrutiny—as opposed to balancing of interests—to government
employment cases.
12
For background, see Pickering v. Board of Ed., 391 U.S. 563, 566-68, 88 S.Ct. 1731, 1734,
20 L.Ed.2d 811 (1968). The outcome of the Pickering balancing test is a question of law. See
e.g., Connick v. Myers, 461 U.S. 138, 150 n. 10, 103 S.Ct. 1684, 1692 n. 10, 75 L.Ed.2d 708(1983).
13
In Umbehr, the Court determined "whether, and to what extent, the First Amendment
protects independent contractors from the termination of at-will government contracts in
retaliation for their exercise of the freedom of speech." Id., --- U.S. at ----, 116 S.Ct. at 2345.
The Court specifically rejected the contractor's argument that "on proof of viewpoint-based
retaliation for contractors' political speech, the government should be required to justify its actions
as narrowly tailored to serve a compelling state interest," id. at ----, 116 S.Ct. at 2349, and wrote as
follows:
[Contractor] is correct that if the Board had exercised sovereign power against him
as a citizen in response to his political speech, it would be required to demonstrate that its
action was narrowly tailored to serve a compelling governmental interest. But in this case,
as in government employment cases, the Board exercised contractual power, and its interests
as a public service provider, including its interest in being free from intensive judicial
supervision of its daily management functions, are potentially indicated. Deference is
therefore due to the government's reasonable assessment of its interest as contractor.
Id. at ----, 116 S.Ct. at 2349.
We conclude that the appropriate test for evaluating the constitutional implications of the
State of Georgia's decision—as an employer—to withdraw Shahar's job offer based on her
"marriage" is the same test as the test for evaluating the constitutional implications of a government
employer's decision based on an employee's exercise of her right to free speech, that is, the Pickering
balancing test.14
B.
Upon holding that the First Amendment protects contractors from such retaliatory termination, it
then determined the relevant standard for deciding whether a government contractor's First
Amendment rights had been violated.
14
In Parks v. City of Warner Robins, 43 F.3d 609 (11th Cir.1995), we recently held that a
government employee's termination (pursuant to an anti-nepotism policy) did not impose a
"significant burden" on either her right to marry or her right to intimate association and,
therefore, we reviewed the city's anti-nepotism policy (as applied to that employee) under the
rational basis test. In so doing, we distinguished generally applicable legislative acts from ad
hoc executive decisions:
Unlike the legislative act embodied in Warner-Robins' anti-nepotism
policy, however, the secretary's reassignment in McCabe [v. Sharrett, 12 F.3d
1558 (1994) ] was a quintessentially executive act. See McKinney v. Pate, 20
F.3d 1550, 1557 n. 9 (11th Cir.1994) (en banc) (distinguishing executive acts,
which "characteristically apply to a limited number of persons" and which
"typically arise from the ministerial or administrative activities of members of the
executive branch" from legislative acts, which "generally apply to a larger
segment of ... society" and which include "laws and broad-ranging executive
regulations.").
Id. at 613 n. 2. Nothing in this opinion is intended to disapprove Parks or to hint that it is
no longer the law in this circuit for reviewing legislative acts.
We have previously pointed out that government employees who have access to their
employer's confidences or who act as spokespersons for their employers, as well as those employees
with some policy-making role, are in a special class of employees and might seldom prevail under
the First Amendment in keeping their jobs when they conflict with their employers. See Bates v.
Hunt, 3 F.3d 374, 378 (11th Cir.1993); Sims v. Metropolitan Dade County, 972 F.2d 1230, 1237-38
(11th Cir.1992). See also Kinsey v. Salado Independent School Dist., 950 F.2d 988 (5th Cir.1992)
(en banc ). See generally Pickering v. Board of Ed., 391 U.S. 563, 570 n. 3, 88 S.Ct. 1731, 1735 n.
3, 20 L.Ed.2d 811 (1968).
Put differently, the government employer's interest in staffing its offices with persons the
employer fully trusts is given great weight when the pertinent employee helps make policy, handles
confidential information or must speak or act—for others to see—on the employer's behalf. See
Bates, 3 F.3d at 378; Sims, 972 F.2d at 1237-38. Staff Attorneys inherently do (or must be ready
to do) important things, which require the capacity to exercise good sense and discretion (as the
Attorney General, using his considered judgment, defines those qualities): advise about policy;
have access to confidential information (for example, litigation strategies); speak, write and act on
behalf of the Attorney General and for the State.
In a case such as this one, the employee faces a difficult situation. In fact, we know of no
federal appellate decision in which a subordinate prosecutor, state's attorney or like lawyer has
prevailed in keeping his job over the chief lawyer's objection. See e.g., Connick v. Myers, 461 U.S.
138, 154-56, 103 S.Ct. 1684, 1694, 75 L.Ed.2d 708 (1983); Livas v. Petka, 711 F.2d 798, 801 (7th
Cir.1983) ("One of the problems faced by a prosecutor such as Petka, however, is that his policies
are implemented by subordinates. ... That Petka lost confidence in Livas, for whatever reason, is
therefore sufficient justification for Livas' dismissal.").15 We conclude that the Attorney
15
Livas involved the termination of an assistant state's attorney for political patronage reasons
and, accordingly, the Seventh Circuit analyzed that claim under the test developed by the
Supreme Court for such cases. Though Shahar's case is not a political patronage case and does
not trigger the precise same concerns as those cases, her case is analogous to Livas (and other
political patronage cases involving prosecutors). That is, the chief attorney (at whatever level,
for example, attorney general, district attorney) must have a faith and confidence in his
professional legal staff that might not ordinarily be required in other areas of government
General—who is an elected official with great duties and with no job security except that which
might come from his office's performing well—may properly limit the lawyers on his professional
staff to persons in whom he has trust.
As both parties acknowledge, this case arises against the backdrop of an ongoing controversy
in Georgia about homosexual sodomy, homosexual marriages, and other related issues, including
a sodomy prosecution—in which the Attorney General's staff was engaged—resulting in the
well-known Supreme Court decision in Bowers v. Hardwick, 478 U.S. 186, 190-92, 106 S.Ct. 2841,
2844, 92 L.Ed.2d 140 (1986) (criminal prosecution of homosexual sodomy does not violate
substantive due process).16 When the Attorney General viewed Shahar's decision to "wed"
employment. So, in balancing the parties' interests, the chief attorney must be given greater
deference in his employment decisions than might be appropriate in other areas of government
employment. See also Americanos v. Carter, 74 F.3d 138, 143 (7th Cir.1996) (deputy attorney
general not entitled to protection where "DAGs have the direct ability to implement the policies
and goals of the AG" and "the legislature ... also felt that it was important for an AG to employ
the legal staff of his or her own choosing") (citing relevant statute); Monks v. Marlinga, 923
F.2d 423, 426 (6th Cir.1991) (per curiam ) (assistant prosecuting attorney not entitled to
protection as "the job of assistant prosecutor is a policy-making position"). Cf. Branti v. Finkel,
445 U.S. 507, 519 n. 13, 100 S.Ct. 1287, 1295 n. 13, 63 L.Ed.2d 574 (1980)(observing that
responsibilities of assistant public defender are "in contrast to the broader public responsibilities
of an official such as a prosecutor.")
At least before the Government Employee Rights Act of 1991, we, in our Title
VII and Age Discrimination in Employment Act jurisprudence, held that assistant state
attorneys and the like—lawyers who serve at the pleasure of their policy-making
chief—were not employees protected by the statutes, but were members of the personal
staff of the chief lawyer: the position is one of policy-making level, involving one who
necessarily advises, and acts upon, the exercise of constitutional and legal powers of the
chief's office. See e.g., EEOC v. Reno, 758 F.2d 581, 584 (11th Cir.1985) (assistant state
attorney). See also Wall v. Coleman, 393 F.Supp. 826, 831 (S.D.Ga.1975) ("As a matter
of common knowledge and experience we know that [a district attorney] gets public
credit for the good job done and impression made by his assistants and gets public
criticism for the poor performance or impression made by his assistants. At election time
he is judged by what he and his assistants have done."). This "personal staff" (to use
Congress's words) idea embodies the general and traditional proposition that positions of
confidentiality, policy-making or acting and speaking before others on behalf of the chief
are truly different from other kinds of employment. This point is central to the case now
before us.
In deciding the present case, we put aside all other kinds of public employment;
but, in doing so, we do not say today that other kinds of employment would necessarily
lead to a different result.
16
The controversy in the State of Georgia and the Attorney General's involvement at the heart
of that controversy, both as the State's litigator and its legal advisor, have not let up since the
openly—complete with changing her name—another woman (in a large "wedding") against this
background of ongoing controversy, he saw her acts as having a realistic likelihood to affect her
(and, therefore, the Department's) credibility, to interfere with the Department's ability to handle
certain kinds of controversial matters (such as claims to same-sex marriage licenses, homosexual
parental rights, employee benefits, insurance coverage of "domestic partners"), to interfere with the
Department's efforts to enforce Georgia's laws against homosexual sodomy,17 and to create other
Attorney General's 1991 decision to revoke the offer to Shahar. See In re R.E.W., 267 Ga. 62,
472 S.E.2d 295 (1996) (three-judge dissent from denial of certiorari to review court of appeal
decision holding restriction on father's visitation rights inappropriate where based on his
homosexual relationship); Christensen v. State, 266 Ga. 474, 468 S.E.2d 188, 190 (1996)(in
case involving same-sex solicitation in public rest area, upholding—against challenge based on
state constitution—statute criminalizing solicitation of sodomy); City of Atlanta v. McKinney,
265 Ga. 161, 454 S.E.2d 517, 521 (1995) (striking down portion of Atlanta ordinance mandating
provision of benefits to registered "Domestic Partners"); Van Dyck v. Van Dyck, 262 Ga. 720,
425 S.E.2d 853 (1993) (live-in lover statute inapplicable to attempt to modify alimony where
former spouse lived in meretricious same-sex relationship); Op. Att'y. Gen 96-7, 1996 WL
180274 (Ga.A.G.) (Attorney General called on to advise whether state college newspaper may
refuse to publish advertisements suggesting that homosexuals are not "born gay" and "[t]here is
another way out" and containing text which "might be perceived to "derogatorily describe
homosexuals' "); Op. Att'y Gen. 94-14 (1994 Ops. Att'y Gen. Ga. 32 (Darby 1994)) (Attorney
General called on to advise Insurance Commissioner as to approval of proposed policy
amendment affording group accident and health coverage to "domestic partners"); Op. Att'y
Gen. 93-26 (1993 Ops. Att'y Gen. Ga. 72 (Darby 1993)) (Attorney General called on to advise
Insurance Commissioner regarding "group health insurance provided pursuant to municipal
ordinances which create the status of domestic partnership").
17
About public perception, we accept that the fact the Shahars are professed lesbians and see
themselves as "married" does not prove beyond reasonable doubt that either of them has engaged
in sodomy within the meaning of Georgia law. But we also accept that, when two people say of
themselves that they are "married" to each other, it is reasonable for others to think those two
people engage in marital relations.
A United States Circuit Judge in another circuit has written: "Sodomy is an act
basic to homosexuality." See Watkins v. U.S. Army, 847 F.2d 1329, 1357 (9th Cir.1988)
(Reinhardt, J., dissenting), vacated, 875 F.2d 699 (1989). We cannot say that Georgia's
Attorney General is clearly wrong to worry that reasonable people—inside and outside
the Law Department—in Georgia could think along these same lines. Whatever else may
be doubted about Georgia's sodomy law, we know that its application to homosexual
sodomy violates no fundamental liberty interest protected by the Federal Constitution
because the Supreme Court has already so held. See Bowers v. Hardwick, 478 U.S. 186,
193-98, 106 S.Ct. 2841, 2846-47, 92 L.Ed.2d 140 (1986). See also id. at 188 n. 2, 106
S.Ct. at 2842 n. 2 ("We express no opinion on the constitutionality of the Georgia statute
as applied to other acts of sodomy."). We acknowledge that some reasonable persons
may suspect that having a Staff Attorney who is part of a same-sex "marriage" is the
same thing as having a Staff Attorney who violates the State's law against homosexual
sodomy. So, we accept that Shahar's participation in a same-sex "wedding" and
"marriage" could undermine confidence about the Attorney General's commitment to
difficulties within the Department which would be likely to harm the public perception of the
Department. See Board of Comm'rs, Wabaunsee Cty. v. Umbehr, --- U.S. ----, ----, 116 S.Ct. 2342,
2347, 135 L.Ed.2d 843 (1996) ("The government needs to be free to terminate both employees and
contractors ... to improve the efficiency, efficacy and responsiveness of service to the public, ...").
In addition, because of Shahar's decision to participate in such a controversial same-sex
"wedding" and "marriage" and the fact that she seemingly did not appreciate the importance of
appearances and the need to avoid bringing "controversy" to the Department, the Attorney General
lost confidence in her ability to make good judgments for the Department.
Whatever our individual, personal estimates might be, we—- as we observe throughout this
opinion—cannot say that the Attorney General's worries and view of the circumstances that led him
to take the adverse personnel action against Shahar are beyond the broad range of reasonable
assessments of the facts.18 See Waters v. Churchill, 511 U.S. 661, 673-81, 114 S.Ct. 1878, 1887-90,
enforce the State's law against homosexual sodomy (or laws limiting marriage and
marriage benefits to traditional marriages).
Shahar has tried to analogize this case (specifically, the Attorney General's
concerns about Shahar's "marriage") to miscegenation cases. Particularly given the
obvious difference between concerns about public perception about
miscegenation—which cannot constitute a legitimate governmental interest, see Loving v.
Virginia, 388 U.S. 1, 10-12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967)—and concerns
about public perceptions about whether a Staff Attorney in the Attorney General's office
is engaged in an ongoing violation of criminal laws against homosexual sodomy—which
laws the Supreme Court has said are valid, see Bowers, 478 U.S. at 193-198, 106 S.Ct. at
2846-47, we believe that the analogy is not helpful to decide this case.
18
Shahar was notified of the withdrawal of her employment offer at a face-to-face meeting not
with the Attorney General, but with two of his senior aides. The withdrawal of the offer was set
out in writing in a letter signed by the Attorney General which was handed to Shahar at this
meeting. The Attorney General did not meet with Shahar before he withdrew his offer. He acted
based on the information supplied to him from his trusted aides who had spoken directly with
Shahar—by telephone or in person—about her intent to "marry" a woman and from aides who
had seen her job application in which she had, in writing, described a woman as her "future
spouse." The decisive information that Shahar intended, in a religious celebration, to "marry" a
woman and then to be known herself as a "married" woman was not erroneous.
We cannot say that the Attorney General acted unreasonably in relying on this
information or in acting without his having spoken personally with Shahar. See generally
Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). See also
Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989). As we see
it, the Attorney General's not having met with Shahar is inconsequential to the Pickering
balance.
128 L.Ed.2d 686 (1994) (plurality opinion) (for Pickering balance, facts to be weighed on
government's side merely need to be reasonable view of facts or reasonable predictions; manager's
view of circumstances is entitled to substantial weight).
C.
We must decide whether Shahar's interests outweigh the disruption and other harm the
Attorney General believes her employment could cause. Pickering balancing is never a precise
mathematical process: it is a method of analysis by which a court compares the relative values of
the things before it. A person often knows that "x" outweighs "y" even without first determining
exactly what either "x" or "y" weighs. And it is this common experience that illustrates the workings
of a Pickering balance.19
To decide this case, we are willing to accord Shahar's claimed associational rights (which
we have assumed to exist) substantial weight. But, we know that the weight due intimate
associational rights, such as, those involved in even a state-authorized marriage, can be overcome
by a government employer's interest in maintaining the effective functioning of his office. See
McCabe v. Sharrett, 12 F.3d 1558, 1569-1570 (11th Cir.1994) (upholding transfer of sheriff's
secretary to less desirable job based on her marriage to an officer in sheriff's department).
In weighing her interest in her associational rights, Shahar asks us also to consider the
"non-employment related context" of her "wedding" and "marriage" and that "[s]he took no action
to transform her intimate association into a public or political statement." In addition, Shahar says
that we should take into account that she has affirmatively disavowed a right to benefits from the
Department based on her "marriage."
19
We are not the first court to assume the existence of a right and, then, to go on to apply the
Pickering balancing test, taking into account the assumed right. See e.g. Kemp v. State Bd. of
Agric., 803 P.2d 498, 505 (Colo.1990) (en banc), cert. denied, 501 U.S. 1205, 111 S.Ct. 2798,
115 L.Ed.2d 972 (1991) ("Even assuming that [the employee's] right to petition was implicated,
the Pickering/Connick balancing test is equally applicable in deciding whether the state's interest
as an employer outweighs the [F]irst [A]mendment interest of the employee."); Barnard v.
Jackson Cty., 43 F.3d 1218, 1223 (8th Cir.1995) ("Because we believe that the second
component of the above test resolves the issues regarding Barnard's contacts with the Star, we
assume without deciding that Barnard's speech with the Star touched upon matters of public
concern, and we proceed to the Pickering balancing test.").
To the extent that Shahar disclaims benefits bestowed by the State based on marriage, she
is merely acknowledging what is undisputed, that Georgia law does not and has not recognized
homosexual marriage. See O.C.G.A. §§ 19-3-1; 19-3-3.1; City of Atlanta v. McKinney, 265 Ga.
161, 454 S.E.2d 517, 519 (1995) ("We hold that the city ... exceeded its authority in extending
employee benefits to persons who are not dependents under state law."); 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."). We fail to see how that technical
acknowledgment counts for much in the balance.
If Shahar is arguing that she does not hold herself out as "married," the undisputed facts are
to the contrary. Department employees, among many others, were invited to a "Jewish,
lesbian-feminist, out-door wedding" which included exchanging wedding rings: the wearing of a
wedding ring is an outward sign of having entered into marriage. Shahar listed her "marital status"
on her employment application as "engaged" and indicated that her future spouse was a woman. She
and her partner have both legally changed their family name to Shahar by filing a name change
petition with the Fulton County Superior Court.20 They sought and received the married rate on their
insurance. And, they, together, own the house in which they cohabit. These things were not done
secretly, but openly.
Even if Shahar is not married to another woman, she, for appearance purposes, might as well
be. We suppose that Shahar could have done more to "transform" her intimate relationship into a
public statement. But after (as she says) "sanctifying" the relationship with a large "wedding"
ceremony by which she became—and remains for all to see—"married," she has done enough to
20
Under Georgia law, a person desiring a name change must "present a petition to the superior
court of the county of his residence, setting forth fully and particularly the reasons why the
change is asked, ..." O.C.G.A § 19-12-1(a). "Within seven days of the filing of the petition, the
petitioner shall cause a notice of the filing, signed by him, to be published in the official legal
organ of the county once a week for four weeks." O.C.G.A § 19-12-1(b).
warrant the Attorney General's concern.21 He could conclude that her acts would give rise to a
likelihood of confusion in the minds of members of the public: confusion about her marital status
and about his attitude on same-sex marriage and related issues.
As for disruption within the Department, Shahar argues that we may discount the potential
harm based on (what she sees as) the weakness of the Attorney General's predictions. Shahar
overstates the Attorney General's "evidentiary burden." See Waters, supra at 675-77, 114 S.Ct. at
1888 ("Government employers should be allowed to use personnel procedures that differ from the
evidentiary rules used by courts, without fear that these differences will lead to liability.")
In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Supreme
Court upheld the termination of an assistant district attorney based on her exercise of her free speech
rights. In so doing, the Court noted the close working relationship involved in a district attorney's
office (which we think is similar to the Department) and held as follows:
When close working relationships are essential to fulfilling public responsibilities,
a wide degree of deference to the employer's judgment is appropriate. Furthermore, we do
not see the necessity for an employer to allow events to unfold to the extent that the
disruption of the office and the destruction of working relationships is manifest before taking
action.
Id. at 150-52, 103 S.Ct. at 1692. See also Waters, 511 U.S. at 673-75, 114 S.Ct. at 1887 ("[W]e have
given substantial weight to government employers' reasonable predictions of disruption, ... even
though when the government is acting as sovereign our review of legislative predictions of harm is
considerably less deferential.")
As we have already written, the Attorney General's worry about his office being involved
in litigation in which Shahar's special personal interest might appear to be in conflict with the State's
21
We recognize that some of these acts (the exchange of rings, the insurance and property
ownership) may not have been known by the Attorney General when he decided to withdraw
Shahar's job offer. We can still consider them. First, these additional facts do not change the
reason—Shahar's "wedding" and "marriage"—for the withdrawal of the job offer. Second, in
balancing the Attorney General's interests with Shahar's, the facts of Shahar's subsequent
conduct are evidence of the reasonableness of the Attorney General's concerns (about potential
public knowledge and perception) at the time he made his decision. By the way, Shahar has
requested "reinstatement" as part of her "relief." "After-acquired evidence" can be especially
relevant in that context. McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, ----, 115 S.Ct.
879, 886, 130 L.Ed.2d 852 (1995).
position has been borne out in fact. See supra, note 16. This worry is not unreasonable. In addition,
the Department, when the job offer was withdrawn, had already engaged in and won a recent battle
about homosexual sodomy—highly visible litigation in which its lawyers worked to uphold the
lawful prohibition of homosexual sodomy. This history makes it particularly reasonable for the
Attorney General to worry about the internal consequences for his professional staff (for example,
loss of morale, loss of cohesiveness and so forth) of allowing a lawyer, who openly—for instance,
on her employment application and in statements to coworkers—represents herself to be "married"
to a person of the same sex, to become part of his staff. Doubt and uncertainty of purpose can undo
an office; he is not unreasonable to guard against that potentiality.
Shahar also argues that, at the Department, she would have handled mostly death penalty
appeals and that the Pickering test requires evidence of potential interference with these particular
duties. Even assuming Shahar is correct about her likely assignment within the Department, a
particularized showing of interference with the provision of public services is not required. Waters,
511 U.S. at 673-75, 114 S.Ct. at 1887 ("Few of the examples [of government employers restricting
protected speech] we have discussed involve tangible, present interference with the agency's
operation. The danger in them is mostly speculative.") In addition, the Attorney General must be
able to reassign his limited legal staff as the needs of his office require. As the Third Circuit said
in Ness v. Marshall, 660 F.2d 517, 521-522 (3d Cir.1981):
That a city solicitor could conceivably operate in such a legal/technical manner is a
possibility that need not concern us here. Neither need we decide whether the plaintiffs in
fact limited themselves to the role they described.... Under the Administrative Code it is
contemplated that a mayor might rely upon the city solicitors for the legal advice necessary
to implement policy.
In a similar way, it is not for this court to tie the Department's hands by telling it which Staff
Attorneys may be assigned to which cases or duties or to force upon the Attorney General a Staff
Attorney of limited utility. Such an interference by the federal judiciary into the internal
organization of the executive branch of a state government is almost always unwarranted. Cf. Mayor
of Phila. v. Educational Equality League, 415 U.S. 605, 613-17, 94 S.Ct. 1323, 1330-1331, 39
L.Ed.2d 630 (1974) ("[T]o the degree that the principles cited by the Mayor reflect concern that
judicial oversight of discretionary appointments may interfere with the ability of an elected official
to respond to the mandate of his constituency, they are on point.").
D.
As we have already touched upon, the Attorney General, for balancing purposes, has pointed
out, among other things, his concern about the public's reaction—the public that elected him and that
he serves—to his having a Staff Attorney who is part of a same-sex "marriage." Shahar argues that
he may not justify his decision by reference to perceived public hostility to her "marriage." We have
held otherwise about the significance of public perception when law enforcement is involved. In
McMullen v. Carson, 754 F.2d 936 (11th Cir.1985), we held that a sheriff's clerical employee's First
Amendment interest in an off-duty statement that he was employed by the sheriff's office and also
was a recruiter for the Ku Klux Klan was outweighed by the sheriff's interest in esprit de corps and
credibility in the community the sheriff policed. More important, we relied, in large part, on public
perceptions of the employee's constitutionally protected act. Id. at 938-940.22
In McMullen, both public perception and the anticipated effect that the employee's
constitutionally protected activity would have on cohesion within the office were crucial in tipping
the scales in the sheriff's favor. Nothing indicates that the employee had engaged in a criminal act
or that he had joined an organization (he had joined the Invisible Empire23) that had engaged in any
22
The Supreme Court later cited McMullen with approval, in Rankin v. McPherson, 483 U.S.
378, 391 n. 18, 107 S.Ct. 2891, 2901 n. 18, 97 L.Ed.2d 315 (1987), as follows:
This is not to say that clerical employees are insulated from discharge where their
speech, taking the acknowledged factors into account, truly injures the public
interest in the effective functioning of the public employer. Cf. McMullen v.
Carson, 754 F.2d 936 (C.A.11 1985) (clerical employee in sheriff's office
properly discharged for stating on television news that he was an employee for
the sheriff's office and a recruiter for the Ku Klux Klan).
23
About perceptions, we wrote these words: "Although the Invisible Empire is just one of the
various Klan organizations in the country, the public makes no distinctions in its perception of
the Klan as a monolithic entity." McMullen, 754 F.2d at 938 (emphasis added). We also said
this about the employer's duty to wait for events to unfold: "Plaintiff suggests Sheriff Carson
acted too swiftly, that actual public perception should have been tested before taking any action.
Carson responded that based on his 27 years of experience with the Jacksonville Sheriff's Office,
he knew all too well what the reaction would be. ... There was no reason for Carson to wait in
this type of situation." Id. at 939.
criminal act. Given that it was additionally undisputed that neither the employee's statements nor
his protected expressive association hindered his ability to perform his clerical duties and that the
specific clerk "performed his duties in exemplary fashion," id. at 937, the two factors—public
perception and anticipated effect—seemed to be the only ones weighing on the sheriff's side of the
scale. Id. at 938 ("The fundamental question here is whether plaintiff can be fired for his Klan
beliefs and activities just because of the violent public reaction to his employment...."). But that was
enough.
This case is different from McMullen in some ways, but McMullen guides us about the
significance of "public perception." In this case, the Attorney General was similarly entitled to
consider any "deleterious effect on [his] ability to enforce the law of the community," id., and that
"[u]nder our system of Government, that duty [law enforcement] can be performed only with the
consent of the vast majority.... Efficient law enforcement requires mutual respect, trust and
support." Id. at 939.
The Attorney General was also entitled to conclude that the public may think that
employment of a Staff Attorney who openly purports to be part of a same-sex "marriage" is, at best,
inconsistent with the other positions taken or likely to be taken by the Attorney General as the state's
chief legal officer. The Attorney General has a right to take steps to protect the public from
confusion about his stand and the Law Department's stand on controversial matters, such as
same-sex marriage.
Public perception is important; but, at the same time, it is not knowable precisely. That the
public (which we know is rarely monolithic) would not draw the Attorney General's anticipated
inferences from Shahar's "marriage" or, at least, would not attribute such perceptions to the
Department or the Attorney General is a possibility.24 But assessing what the public perceives about
24
The Attorney General's sense that Georgia's people, in general, are set against equating in
some way a relationship between persons of the same sex with traditional marriage seems to
have been corroborated by O.C.G.A. § 19-3-3.1 (prohibiting same-sex marriage) and by 1 U.S.C
§ 7 (defining marriage as consisting of a man and a woman) and 28 U.S.C. § 1738C (giving
states the power to refuse to recognize same-sex marriages entered into in other states). The
federal statutes became law with the support of both of Georgia's senators and ten of Georgia's
twelve Members of the House of Representatives and were sponsored by a Georgia Member of
the Attorney General and the Law Department is a judgment for the Attorney General to make in
the day-to-day course of filling his proper role as the elected head of the Department, not for the
federal judiciary to make with hindsight or from a safe distance away from the distress and
disturbance that might result if the decision was mistaken. We must defer to Georgia's Attorney
General's judgment about what Georgians might perceive unless his judgment is definitely outside
of the broad range of reasonable views. Nothing that either the Supreme Court or this circuit has
held in applying the Pickering test leads us to a different conclusion. See e.g., Waters v. Churchill,
511 U.S. 661, 673-75, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686 (1994) (plurality opinion); Connick
v. Myers, 461 U.S. 138, 154-56, 103 S.Ct. 1684, 1694, 75 L.Ed.2d 708 (1983).
Shahar says that by taking into account these concerns about public reaction, the Attorney
General impermissibly discriminated against homosexuals; and she refers us to the Supreme Court's
recent decision in Romer v. Evans, --- U.S. ----, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). In Romer,
the Supreme Court struck down an amendment to a state constitution as irrational because the
amendment's sole purpose was to disadvantage a particular class of people (to "den[y] them
protection across the board," id. at ----, 116 S.Ct. at 1628) and because the government engaged in
"classification of persons undertaken for its own sake, something the Equal Protection Clause does
not permit." Id. at ----, 116 S.Ct. at 1629.
Romer is about people's condition; this case is about a person's conduct.25 And, Romer is
no employment case. Considering (in deciding to revoke a job offer) public reaction to a future Staff
Attorney's conduct in taking part in a same-sex "wedding" and subsequent "marriage" is not the
same kind of decision as an across-the-board denial of legal protection to a group because of their
condition, that is, sexual orientation or preference.26
the House of Representatives.
25
We also note that in deciding Romer, the Court did not overrule or disapprove (or even
mention) Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which was
similarly about conduct in that it held that the State of Georgia did not violate "substantive due
process" in prosecuting homosexual sodomy as a crime.
26
Neither Romer nor any other case in which a state government (acting as sovereign) violated
the Equal Protection Clause of the Fourteenth Amendment by giving effect to private prejudice,
III
This case is about the powers of government as an employer, powers which are far broader
than government's powers as sovereign. In addition, the employment in this case is of a special kind:
employment involving access to the employer's confidences, acting as the employer's spokesperson,
and helping to make policy. This kind of employment is one in which the employer's interest has
been given especially great weight in the past. Furthermore, the employment in this case is
employment with responsibilities directly impacting on the enforcement of a state's laws: a kind of
employment in which appearances and public perceptions and public confidence count a lot.
Particularly considering this Attorney General's many years of experience and Georgia's
recent legal history, we cannot say that he was unreasonable to think that Shahar's acts were likely
to cause the public to be confused and to question the Law Department's credibility; to interfere
with the Law Department's ability to handle certain controversial matters, including enforcing the
law against homosexual sodomy; and to endanger working relationships inside the Department. We
also cannot say that the Attorney General was unreasonable to lose confidence in Shahar's ability
to make good judgments as a lawyer for the Law Department.
We stress in this case the sensitive nature of the pertinent professional employment. And
we hold that the Attorney General's interest—that is, the State of Georgia's interest—as an employer
in promoting the efficiency of the Law Department's important public service does outweigh
Shahar's personal associational interests.
We do not decide today that the Attorney General did or did not do the right thing when he
withdrew the pertinent employment offer. That decision is properly not ours to make. What we
decide is much different and less: For the Law Department's professional staff, Georgia's Attorney
General has made a personnel decision which none of the asserted federal constitutional provisions
prohibited him from making.27
see e.g. Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), convinces us
otherwise.
27
That the Attorney General did not revoke Shahar's offer because of her religious affiliation
or her religious beliefs (as opposed to her conduct) is plain from the record. Assuming arguendo
AFFIRMED.
TJOFLAT, Circuit Judge, specially concurring:
I join the court's judgment affirming the district court's rejection of Robin Shahar's claim that
Attorney General Michael Bowers withdrew his offer of employment because she is a homosexual
and thus denied her the equal protection of the laws in violation of the Fourteenth Amendment. I
do so because, as the court concludes, the record does not permit the inference that the Attorney
General's decision was based on her homosexual status.
I also join the court's judgment with respect to Shahar's remaining claims, all brought under
the First and Fourteenth Amendments—that the Attorney General withdrew the offer because of
Shahar's intimate association with her lesbian partner and because Shahar participated in a religious
wedding ceremony with her partner.1 This latter claim is couched as two claims: a claim that
Shahar's participation in the ceremony constituted an exercise of religion on her part, and a claim
that such exercise was a purpose of her and her partner's expressive association. The court rejects
that the Attorney General's decision to revoke Shahar's offer did implicate her Free Exercise
rights, we believe that Pickering balancing applies, see e.g. Brown v. Polk County, Iowa, 61 F.3d
650, 658 (8th Cir.1995) (en banc ), and that the Attorney General prevails in that balance for the
reasons discussed above. In addition, several of us also doubt that a facially neutral executive
act which adversely impacts on the exercise of one's religion either constitutes a violation of the
Free Exercise Clause or requires heightened scrutiny. Lyng v. Northwest Indian Cemetery
Protective Assn., 485 U.S. 439, 449-51, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 534 (1988)
(government's ability to carry out its policies "cannot depend on measuring the effects of a
governmental action on a religious objector's spiritual development"). We affirm the district
court's holding denying Shahar's free exercise claim.
The district court also held that the record supports no reasonable inference that
the Attorney General revoked Shahar's offer because of her sexual orientation—as
opposed to her conduct in "marrying" another woman. Because Shahar fails to point us
to enough evidence to support such an inference, we also affirm the district court's
holding on Shahar's equal protection claim.
1
The record in this case supports an inference that the Attorney General withdrew Shahar's
offer of employment because he thought Shahar had "set him up;" once ensconced in the
Department of Law office, she would use her position to advance a homosexual-rights agenda
among her co-employees. Had the Attorney General's decision been motivated by this concern,
Shahar may have had a free speech claim. See, e.g., Connick v. Myers, 461 U.S. 138, 150-54,
103 S.Ct. 1684, 1692-93, 75 L.Ed.2d 708 (1983) (applying Pickering to a district attorney's
decision to discharge a deputy because her speech on a matter of public concern disrupted the
district attorney's office). Shahar, however, did not present a free speech claim to the district
court; consequently, such a claim is not involved in this case.
all of these claims by assuming the existence of the alleged constitutional right and then, under
Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), balancing the
assumed right against the Attorney General's governmental interest in the efficient operation of the
Department of Law.2
The court engages in Pickering balancing in an effort to avoid the question whether the
Constitution protects the First and Fourteenth Amendment rights Shahar seeks to enforce. I agree
that constitutional questions should be answered only when necessary to the resolution of the case.
See Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445-46, 108 S.Ct. 1319,
1323-24, 99 L.Ed.2d 534 (1988); Ashwander v. TVA, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-83,
80 L.Ed. 688 (1936) (Brandeis, J., concurring). In this case, however, I believe the court must reach
the constitutional question in order to determine under Pickering whether the Attorney General's
action was lawful. As I explain below, the court must describe qualitatively the constitutional right
it is placing on the scale in order to determine whether, on balance, the government's interest is to
prevail. The court does not do this—it does not tell us, with respect to each of Shahar's remaining
claims, where the assumed right ranks in the constitutional hierarchy.3
2
Shahar's complaint sought (for each of her claims) injunctive relief (an order requiring the
Attorney General to reinstate the offer of employment) and money damages. In his answer, the
Attorney General pled qualified immunity as an affirmative defense to Shahar's prayers for
money damages. The district court did not pass on this defense because it concluded that the
record disclosed no constitutional violation. In this appeal, the Attorney General does not ask us
to affirm the district court's summary judgment with respect to the damages aspect of the case on
the alternative ground that he is entitled to qualified immunity.
3
The court contends that this is unnecessary because
Pickering balancing is never a precise mathematical process: it is a method of
analysis by which a court compares the relative values of the things before it. A
person often knows that "x" outweighs "y" even without first determining exactly
what either "x" or "y" weighs. And it is this common experience that illustrates
the workings of a Pickering balance.
Ante at [---].
The court cites two cases for the proposition that other courts have balanced
under Pickering a government employer's interest against an employee's assumed
constitutional right. The first case, Kemp v. State Bd. of Agric., 803 P.2d 498(Colo.1990), cert. denied 501 U.S. 1205, 111 S.Ct. 2798, 115 L.Ed.2d 972 (1991), is, in
my view, inapposite. In Kemp, the plaintiff, an employee of Colorado State University
Pickering balancing, in the public employment context, involves the weighing of the
employee's interest in the exercise of a constitutional right against the employer's interest in
maintaining an efficient workplace.4 The employee has exercised a constitutional right, and the
who claimed that sex and race discrimination resulted in "a salary increase she felt was
too low," id. at 500, invoked the university's formal grievance procedure and chose to
have her grievance heard in a closed rather than in an open proceeding. While the
proceeding was underway, she wrote one of her U.S. Senators complaining about
irregularities in the proceeding. When the office in charge of investigating her
allegations learned that she had brought an outside party into the picture, he terminated
the proceeding. The university president affirmed the officer's decision. The employee
then sued the university and others, seeking unspecified injunctive relief and money
damages. Kemp v. State Bd. of Agric., 790 P.2d 870 (Colo.Ct.App.1989).
The question before the court was whether the university's closed hearing
procedure, which "clearly indicate[d] that outside forces may not be invited into the
proceedings until a decision has been rendered," Kemp, 803 P.2d at 504-505, violated the
employee's First Amendment rights of free speech and petition of grievances. The
Colorado Supreme Court chose to decide the question by engaging in Pickering
balancing instead of determining whether the employee had waived her rights of free
speech and of petition by voluntarily choosing to have her grievance decided in a closed
proceeding. Applying Pickering to the employee's claims, the court had no problem
determining that her speech was not a matter of public concern under Connick and that
Pickering therefore did not protect the employee. The court then faced the novel
question of whether Pickering applied to First Amendment petition claims. The court
assumed that the employee's right to petition was implicated when she contacted her
senator and concluded that she had "no stronger interest [under the Petition Clause] than
[she] had under the Free Speech Clause." Id. at 506. Thus, while the court assumed the
existence of the right, it assigned the right the maximum weight possible—the same
weight accorded speech on a matter of public concern. If, in the case at hand, the court is
going to assume that Shahar's relationship with her partner constitutes an intimate
association under the First Amendment, the court should do as the Colorado Supreme
Court did and give it the highest weight possible, the weight given heterosexual marriage.
The other case in which an employee's right was assumed is Barnard v. Jackson
County, 43 F.3d 1218 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 53, 133 L.Ed.2d 17(1995). There, an auditor hired by a county legislature to perform an internal audit of the
county's agencies and offices leaked the results of his audit to the press. When the
legislators learned what he had done, they terminated his employment. In striking a
Pickering balance, the court assumed that the leak was speech on a matter of public
concern. Barnard differs from the instant case in that the right the Eighth Circuit
assumed and the weight to be accorded to it were well established. In the instant case,
while the existence of the right of intimate association has been established, the nature of
the right outside of the marital/familial context and the weight such right should be
accorded are not well established. Again, the court's assumption in that case tells us to
what weight the right is entitled. The court's opinion in the instant case should do the
same.
4
Pickering was a free speech case: a public high school teacher claimed that his employer
fired him because he sent a letter to a local newspaper. The letter was critical of the way that
Board of Education and superintendent had handled political issues related to education. 391
employer, concluding that such exercise seriously has impaired, or will impair, the ability of the
workplace to function properly, makes an employment decision adverse to the employee. In order
to decide whether the employer's decision was justified, the court places the interest of the employer
on one side of a "scale" and the interest of the employee on the other side. If the employer's interest
outweighs the employee's, the employer prevails. Pickering balancing does not apply where the
employee's constitutionally protected conduct did not motivate the employer's decision. In such a
case, balancing is not necessary; the employer prevails because the employee has not established
the element of causation. See, e.g., Board of County Comm'rs v. Umbehr, --- U.S. ----, ----, 116
S.Ct. 2342, 2347, 135 L.Ed.2d 843 (1996); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); McCabe v. Sharrett, 12 F.3d 1558,
1562 (11th Cir.1994).
When a court engages in Pickering balancing, it must identify the constitutional source of
the right the employee exercised and assign weight to that right. Otherwise, balancing cannot occur.
It cannot occur any more than the local butcher can weigh five pounds of hamburger without placing
a five pound weight on the other side of the scale. In the case at hand, the court, with respect to each
of Shahar's claims, assumes Shahar's exercise of a constitutional right without describing the right
U.S. at 564-66, 88 S.Ct. at 1732-33. The Supreme Court concluded that the employer's action
was lawful only if its interests as an employer outweighed the teacher's interest in exercising his
free speech right.
Some courts have extended Pickering balancing to scrutinize adverse employment
decisions made on account of the employee's exercise of other constitutionally protected
rights. See, e.g., Hatcher v. Board of Pub. Educ. and Orphanage, 809 F.2d 1546, 1559
(11th Cir.1987) (applying Pickering to an expressive association claim); Stough v.
Crenshaw County Bd. of Educ., 744 F.2d 1479, 1480-82 (11th Cir.1984) (applying
Pickering to parents' "constitutional right to control the education of their children");
Brown v. Polk County, 61 F.3d 650, 658-59 (8th Cir.1995) (en banc) (applying Pickering
to a free exercise of religion claim), cert. denied, --- U.S. ----, 116 S.Ct. 1042, 134
L.Ed.2d 189 (1996); Sullivan v. Meade Independent School District No. 101, 530 F.2d
799, 804-06 (8th Cir.1976) (suggesting that Pickering would apply to association claim
and substantive due process privacy claim). I do not criticize the court for extending
Pickering to claims of intimate association, expressive association, and free exercise. My
criticism is with the way in which the court applies Pickering to the assumed rights in
this case.
and telling us the weight it has assigned to it.5 It then places on the other side of the scale the
Attorney General's interest in operating an efficient Department of Law that can command the
public's respect, and concludes that such interest outweighs what the court has assumed and placed
on Shahar's side of the scale.
I submit that if one assumes that the First Amendment protects the homosexual relationship
between Shahar and her partner as an intimate association, summary judgment on the intimate
association claim was inappropriate on the record before us. Thus, I reach the question whether that
relationship has First Amendment protection. I conclude that it does not. As for Shahar's claims
that the Attorney General based his employment decision on Shahar's participation in the religious
wedding ceremony and thus infringed her rights of free exercise of religion and expressive
association, I conclude that the claims fail for want of proof that the religious nature of that
ceremony motivated, in whole or in part, the Attorney General's decision. I turn first to Shahar's
intimate association claim.
I.
A.
Shahar argues that the Attorney General's withdrawal of the offer of employment violated
her right to intimate association with her partner. The Supreme Court articulated the right to
intimate association in Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d
462 (1984), recognizing that its prior decisions "afford the formation and preservation of certain
kinds of highly personal relationships a substantial measure of sanctuary from unjustified
interference by the State." Id. at 618, 104 S.Ct. at 3250.6 The Court explained that relationships
5
Nor does the court identify a causal link between Shahar's exercise of the right in question
and the Attorney General's withdrawal of the offer of employment. As pointed out above, there
is no need to engage in Pickering balancing if it has not been shown that the adverse
employment decision was caused by the employee's exercise of the constitutional right.
6
As the court notes, the Supreme Court has formally located the right of intimate association
within the First Amendment. See Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481
U.S. 537, 545-47, 107 S.Ct. 1940, 1945-46, 95 L.Ed.2d 474 (1987). The cases cited by Roberts,
however, are substantive due process cases. Because of this confusion, there exists a split among
the circuits as to whether the right of intimate association is a First Amendment or substantive
due process right. Compare Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir.1993) (holding that
"that attend the creation and sustenance of a family—marriage, childbirth, the raising and education
of children, and cohabitation with one's relatives" are the type of relationships afforded protection
as intimate associations. Id. at 619, 104 S.Ct. at 3250 (citations omitted).
The Court has since explained that "we have not held that constitutional protection is
restricted to relationships among family members." Rotary Int'l, 481 U.S. at 545, 107 S.Ct. at 1946.
On the other hand, the Court has also stated that "we do not think the Constitution recognizes a
generalized right of "social association.' " City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct.
1591, 1595, 104 L.Ed.2d 18 (1989).
The Court in Roberts provided some guidance in determining which relationships are entitled
to protection as intimate associations. Roberts provides a list of "factors that may be relevant [to
determining whether a given relationship constitutes an intimate association], includ[ing] size,
purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be
pertinent." 468 U.S. at 620, 104 S.Ct. at 3251. While these factors may be relevant, I believe that
courts must also determine whether the asserted relationship has "played a critical role in the culture
and traditions of the Nation by cultivating and transmitting shared ideals and beliefs." Id. at 618-19,
104 S.Ct. at 3250.
In its most recent case to address the issue of intimate association, FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), the Court evaluated a claim that a
municipal ordinance that required a license for any motel renting rooms for fewer than ten hours
violated a hotel patron's intimate association rights. There, the Court held that
we do not believe that limiting motel room rentals to 10 hours will have any discernible
effect on the sorts of traditional personal bonds to which we referred in Roberts. Any
"personal bonds" that are formed from the use of a motel room for fewer than 10 hours are
not those that have "played a critical role in the culture and traditions of the Nation by
cultivating and transmitting shared ideals and beliefs."
Id. at 237, 110 S.Ct. at 599 (quoting Roberts, 468 U.S. at 618-19, 104 S.Ct. at 3249-50).
the right of intimate association is "properly based on the concept of liberty in the Fourteenth
Amendment") (quotation marks and citation omitted), and Kraft v. Jacka, 872 F.2d 862, 871 (9th
Cir.1989) (same); with Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir.1996) (holding
that the right of intimate association is a First Amendment right). I do not believe that this
question affects my analysis here, and therefore do not address the issue further.
This passage illustrates the Court's view that "the culture and traditions of the Nation" are
critical to the determination of whether a particular relationship is entitled to protection as an
intimate association.
The cases Roberts cites as examples of relationships that are protected as intimate
associations further indicate the crucial importance of "the culture and traditions of the Nation." In
Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), the Court traced the long
line of cases extending from the nineteenth century to the present recognizing the fundamental
character of marriage. Citing Maynard v. Hill, 125 U.S. 190, 205, 211, 8 S.Ct. 723, 726, 729, 31
L.Ed. 654 (1888), the Zablocki Court noted that marriage is "the most important relation in life and
[is] the foundation of the family and society, without which there would be neither civilization nor
progress." Zablocki, 434 U.S. at 384, 98 S.Ct. at 680 (quotation marks and citations omitted).
The Court noted in Smith v. Organization of Foster Families for Equality and Reform, that
"the liberty interest in family privacy has its source ... in intrinsic human rights, as they have been
understood in this Nation's history and traditions." 431 U.S. 816, 845, 97 S.Ct. 2094, 2110, 53
L.Ed.2d 14 (1977) (quotation marks omitted). In Carey v. Population Servs. Int'l, the Court
explained that "[t]he decision whether or not to beget or bear a child is at the very heart of th[e]
cluster of constitutionally protected choices" about family, childrearing, and conception. 431 U.S.
678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977). Finally, in Moore v. City of East Cleveland,
a plurality of the Court observed that "[o]ur decisions establish that the Constitution protects the
sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's
history and tradition. It is through the family that we inculcate and pass down many of our most
cherished values, moral and cultural." 431 U.S. 494, 503-04, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531(1977) (footnotes omitted).
These cases, coupled with the Court's holding in FW/PBS, lead to the conclusion that in order
to find that Shahar's relationship is protected as an intimate association, we must find that
homosexual relationships have "played a critical role in the culture and traditions of the Nation by
cultivating and transmitting shared ideals and beliefs."
I conclude that this simply is not the case. Shahar has pointed to nothing to suggest that
homosexual relationships have played a critical role in our history and tradition. On the contrary,
the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140(1986), suggests that homosexual relationships have not played such a role. In that case the Court
concluded that there is no fundamental right to engage in homosexual sodomy. Id. at 190-96, 106
S.Ct. at 2843-47. In arriving at that conclusion, the Court stated that "[n]o connection between
family, marriage, or procreation on the one hand and homosexual activity on the other has been
demonstrated." Id. at 191, 106 S.Ct. at 2844. The Court concluded that "to claim that a right to
engage in [homosexual sodomy] is deeply rooted in this Nation's history and tradition or implicit
in the concept of ordered liberty is, at best, facetious." Id. at 194, 106 S.Ct. at 2486 (quotation marks
omitted).7
Homosexual relationships have not played the same role as marital or familial relationships
in the history and traditions of the Nation. Shahar's relationship with her partner is not a
"fundamental element of personal liberty" protected as an intimate association. As a result, Shahar
fails to state a claim that her right to intimate association has been violated. Summary judgment on
this claim was therefore appropriate.
B.
The court purports to avoid this constitutional decision by assuming that Shahar's
relationship constitutes a protected intimate association and then, by engaging in Pickering
balancing, concluding that the Attorney General's interests outweigh Shahar's interest in her intimate
association. As I stated earlier, a court cannot engage in Pickering balancing without identifying
the constitutional source of the employee's right and assigning the right a weight or constitutional
value. The court points to the First Amendment as the source of the right of intimate association.
7
The fact that Hardwick addressed homosexual conduct does not undermine this conclusion.
The cases I discuss above address conduct as well: the right to get married and the right to have
and raise one's children. Moreover, homosexual conduct is as central to a homosexual
"marriage" as heterosexual intercourse is to a heterosexual marriage. The suggestion that
homosexual relationships have played a role in our history and traditions while acknowledging
that homosexual conduct has played no role in them would be "at best, facetious."
It does not, however, indicate the weight it assigns to Shahar's assumed intimate association. The
court simply sidesteps this issue. Instead, after assuming for the sake of argument that Shahar has
a right of intimate association, the court, observing that the right is "not absolute," ante at [---],
concludes that the Attorney General's interest outweighed Shahar's and that his "act—as an
employer—was still lawful." Ante at [---].
I suggest that if the court is going to assume that Shahar's relationship with her partner is a
protected intimate relationship, the court ought to assume that it is "a fundamental element of
personal liberty," Roberts, 468 U.S. at 618, 104 S.Ct. at 3249, protected because it is "deeply rooted
in this Nation's history and tradition."8 Moore, 431 U.S. at 503, 97 S.Ct. at 1938; see supra n. 3.
A reasonable trier of fact could find from the record in this case that the Attorney General's decision
was motivated not by the fact that Shahar is a homosexual, but because she and her partner were
maintaining an open homosexual relationship.9 Thus, unless the Attorney General would prevail
as a matter of law in a Pickering balance, summary judgment was inappropriate. I believe that it is
likely that Shahar would prevail in such a balance.
If Shahar's relationship is entitled to the same level of protection as is a heterosexual
8
Shahar contends that her "intimate association is of the type most central to that personal
liberty. Shahar's interests in creating and maintaining her primary, familial relationship with her
partner warrant the greatest weight possible for intimate associations in the Pickering analysis."
Reply Brief at 41. Her relationship with her partner "exemplifies the First Amendment values
behind the right of intimate association and weighs heavily on her side of the Pickering scale as
a core protected activity." Reply Brief at 19. Its "purpose was to create a family," Appellant's
Brief at 23; thus, her "committed union with her female partner is precisely the type of intimate
human relationship that the Constitution most strongly protects," id. at 22. In sum, according to
Shahar, the relationship is entitled to the same protection as those relationships explicitly
identified by the Supreme Court in Roberts: marriage and familial relationships.
9
A reasonable trier of fact could also find that the Attorney General withdrew Shahar's offer
because he could not trust her; during a telephone conversation in June 1991, Shahar misled
Deputy Attorney General J. Robert Coleman into believing that she was going to marry a male.
A reasonable trier of fact could also or alternatively find that the Attorney General, as he
explained to the Dean of the Emory Law School in a letter contained in the record of this case
below, withdrew the offer because he thought that Shahar had set him up and planned to use him
to advance a homosexual-rights agenda.
With either finding, Shahar's asserted intimate association claim, as well as her
other claims, would fail for lack of proof of causation; that is, the trier of fact would
have determined that the Attorney General's action was not motivated by Shahar's
constitutionally protected activity.
marriage, I doubt whether the public perception of that relationship, or the State of Georgia's public
policy against according such relationships the same protections and privileges as heterosexual
marriage, would be placed on the government's side of the scale. Even if those factors were weighed
in the balance, it is difficult to imagine that they would outweigh Shahar's interest in her
relationship.
A hypothetical will illustrate the point. Suppose that Shahar had married a man of another
race rather than "marrying" a woman. Such a relationship would clearly be protected as an intimate
association. See Roberts, 468 U.S. at 620, 104 S.Ct. at 3251 (citing Loving v. Com. of Virginia, 388
U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967)). I believe that a court engaged in a
Pickering balance would either (1) refuse to consider as government interests the public perception
of such a relationship or any state policy positions hostile toward that relationship, or (2) conclude
that such governmental interests do not prevail in the balance. In short, if the court accords Shahar's
relationship the same constitutional value that the Supreme Court has assigned to heterosexual
marriage, the Attorney General would face a heavy burden in prevailing in a Pickering balance.10
The court could have assumed that Shahar's intimate association right has less weight than
that accorded intimate associations rooted in the Nation's history and tradition.11 From my reading
10
Moreover, whether the Attorney General would have the benefit of his qualified immunity
defense would be problematic. By not raising the issue in this appeal as a ground for affirming
the district court's summary rejection of the damages aspect of the case, the Attorney General
may be deemed to have abandoned that defense.
11
For example, the court could have seized upon language in Roberts which suggests that, in
addition to fundamental liberty interests such as marriage and familial relationships, all human
relationships constitute liberty interests. These relationships can be arrayed on a spectrum with
marital and familial relationships at one end and business relationships at the other. "Between
these polls, of course, lies a broad range of human relationships that may make greater or lesser
claims to constitutional protection from particular incursions by the State." Roberts, 468 U.S. at
620, 104 S.Ct. at 3251. Having seized on this language, the court could have located Shahar's
relationship with her partner at some point on this spectrum between marital/familial
relationships and business relationships. Then the court could have addressed the question
whether the relationship is such that Pickering balancing was required.
Had this been the court's approach, I would have suggested that the court look to
Connick for an answer. Connick addressed the question of the scrutiny a court should
apply in determining whether a public employer's decision to discharge an employee on
account of her speech violated the First Amendment. The Supreme Court distinguished
between speech involving a matter of public concern and speech involving a matter of
of its opinion, however, it did not do so. Even if we were to accord Shahar's right a lesser
constitutional value, the Pickering balancing problem would persist: precisely what weight would
we place on Shahar's side of the scale? In sum, I fail to see how the court can avoid the
constitutional question whether Shahar's relationship with her partner is protected under the First
and Fourteenth Amendments. For this reason, I cannot ascribe to the court's analysis of her intimate
association claim.
II.
Before reaching the issue of whether Pickering applies to Shahar's free exercise of religion
personal concern. With respect to the former, the Court held that the employer's action
must be evaluated under Pickering. This is because "speech on public issues occupies
the highest rung of the hierarchy of First Amendment values, and is entitled to special
protection." 461 U.S. at 145, 103 S.Ct. at 1689 (quotation marks omitted). With respect
to speech not involving matters of public concern, the Court held that "it is unnecessary
for [courts] to scrutinize the reasons for [the employer's decision]." Id. at 146, 103 S.Ct.
at 1690. The Court, however, did "not suggest [that this type of speech] is totally beyond
the protection of the first Amendment." Id. at 147, 103 S.Ct. at 1690.
The Court decided not to scrutinize purely private speech because "government
offices could not function if every employment decision became a constitutional matter."
Id. at 143, 103 S.Ct. at 1688. For this reason,
government officials should enjoy wide latitude in managing their offices, without
intrusive oversight by the judiciary in the name of the First Amendment.
Perhaps the government employer's dismissal of the worker may not be fair, but ordinary
dismissals from government service which violate no fixed tenure or applicable statute or
regulation are not subject to judicial review even if the reasons for the dismissal are
alleged to be mistaken or unreasonable.
Id. at 146-47, 103 S.Ct. at 1690.
[W]hen a public employee speaks not as a citizen upon matters of public concern,
but instead as an employee upon matters only of personal interest, absent the most
unusual circumstances, a federal court is not the appropriate forum in which to
review the wisdom of a personnel decision taken by a public agency allegedly in
reaction to the employee's behavior.
Id. at 147, 103 S.Ct. at 1690.
If Shahar's relationship with her partner does not occupy "the highest rung of the
hierarchy of First Amendment values" such that it is "entitled to special protection," the
court could have held that the Attorney General's action is beyond scrutiny. For if his
action is subject to scrutiny in this case, then any adverse employment decision allegedly
based on a relationship within the Roberts spectrum would also be subject to scrutiny.
The Connick Court sought to avoid this result.
claim, the court must determine whether the record permits the inference that Shahar's participation
in the "wedding" ceremony constituted an exercise of her sincere religious beliefs. See, e.g., Frazee
v. Illinois Dep't. of Employment Sec., 489 U.S. 829, 834, 109 S.Ct. 1514, 1517-18, 103 L.Ed.2d 914(1989) (holding that First Amendment protection extends not merely to a claimant "responding to
the commands of a particular religious organization" but also to a claimant exercising a "sincerely
held religious belief."). In addition, the court must determine that the record permits the inference
that Shahar's religious exercise motivated the Attorney General's decision.12 See Mt. Healthy, 429
U.S. at 283-84, 97 S.Ct. at 574.
Similarly, Shahar must establish that the Attorney General was motivated by the religious
nature of her "wedding" ceremony in order to reach the question of whether Pickering applies to
Shahar's expressive association claim. In Roberts, the Supreme Court recognized that it has "long
understood as implicit in the right to engage in activities protected by the First Amendment a
corresponding right to associate with others" for purposes of engaging in those First Amendment
activities. 468 U.S. at 622, 104 S.Ct. at 3252. Here, the alleged First Amendment activity for which
Shahar and her partner associated was the free exercise of religion: their participation in a religious
"wedding" ceremony.
While the record does establish that Shahar was engaged in the exercise of her religion, there
is no evidence that the religious nature of the ceremony motivated the Attorney General's decision.
The record establishes that homosexual "marriages" are recognized by a part of the Reconstructionist
movement of the Jewish faith. In addition, the record shows that Shahar and her partner are life-long
Jews and that they have been active in a Jewish congregation which ministers to homosexuals and
recognizes homosexual "marriages." Shahar's wedding ceremony was performed by a rabbi and was
12
The court explains that because Shahar's religion does not "require" her to marry a woman,
"considerable doubt also exists that she has a constitutionally protected federal right to be
"married' to another woman to engage in her religion." Ante at [---]. I have found no authority
for the proposition that the Free Exercise Clause protects only those activities which a person's
religion commands him or her to perform. I believe that Supreme Court precedent is to the
contrary. See, e.g., Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 886-87,
110 S.Ct. 1595, 1604-05, 108 L.Ed.2d 876 (1990) (noting that "[r]epeatedly and in many
different contexts, [the Supreme Court has] warned that courts must not presume to determine
the place of a particular belief in a religion or the plausibility of a religious claim").
otherwise quite similar to a traditional Jewish wedding between a man and a woman. These facts
establish that Shahar's wedding ceremony was an exercise of her religion: she participated in a
"wedding" ceremony that was in accord with her sincere religious beliefs.
The record, however, is devoid of evidence which would show that the Attorney General was
motivated by the religious nature of Shahar's marriage ceremony. The record shows that the
Attorney General was aware that Shahar planned to engage in a "big or church" wedding. In
addition, the Attorney General discussed with one of his staff members whether such a marriage
would be recognized by the Jewish faith. This establishes only that the Attorney General was aware
of the religious nature of the ceremony; there is no evidence that the religious nature of the
ceremony prompted him to withdraw Shahar's offer of employment. As a result, both Shahar's free
exercise claim and her expressive association claim fail for want of proof that religion bore a causal
relationship to the Attorney General's decision.
In conclusion, I concur in the court's judgment for the reasons stated above.
GODBOLD, Senior Circuit Judge, dissenting in which BARKETT, Circuit Judge, and
KRAVITCH, Senior Circuit Judge, join:
The court en banc has pretermitted decision of whether Shahar has constitutional rights of
intimate association or expressive association. Instead it assumes that she enjoyed such rights and
decides that these presumed rights have not been violated because the Attorney General acted
reasonably in "revoking [Shahar's] employment offer."1
I would grasp the nettle and hold that in the particular circumstances of this case Shahar
enjoyed rights of intimate association and expressive association and that the Attorney General
violated those rights because he did not act reasonably in revoking the agreement made with
Shahar.2
1
I assume it would make no difference in this Court's decision, but the Attorney General did
not revoke an "employment offer." He had offered employment and the offer had been accepted,
but the date on which work was to begin was left open. Before that date was fixed the Attorney
General canceled the employment agreement.
2
The district court and all three members of the panel agreed that Shahar enjoyed protected
intimate association rights. The district court did not address expressive association.
Shahar does not assert a right to be married as provided by the laws of Georgia (statutory or
common law), or to be issued a marriage license, or to inherit from her spouse, or to be entitled to
social security benefits through her spouse. She does not question the constitutionality of the
Georgia marriage license statute or any provisions of Georgia law that speak in terms of marriage
as a ceremony, or as a status, between persons of different sexes. Nor does she question the validity
of Georgia principles of common law marriages. As the panel of this Court held in its now-vacated
opinion:
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."
70 F.3d at 1222. 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. In ¶ 10 Shahar disclaimed any claim of civil or legal marriage
pursuant to law. That paragraph 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 purely religious nature.
The religious and historical roots of the associational rights that Shahar defends were spelled
out in the panel opinion. Because that opinion has now been vacated, they deserve to be repeated.
The intimate association Shahar asserts is not based upon false or sham assertions
of religious belief, or hasty decision, of 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.
70 F.2d at 1222-23.
The evidence discloses 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, and still other movements are divided in view, with some rabbis
performing such marriages and others declining to do so. But the critical facts 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 the Attorney General
terminated the agreement with her, but it is relevant to the fact that her association has religious
basis and status. It was the culmination of a weekend of religious-centered activities that began
Friday evening with a celebration of the Hebrew Sabbath, which extends from Friday evening to
Saturday evening. The wedding occurred on Sunday. Essentially the ceremony followed the
traditional ceremony for a heterosexual Jewish couple except for deletion of terms "bride" and
"groom." It took place beneath the traditional canopy. The couple signed the traditional Kutubah,
or written marriage contract. They exchanged rings in traditional fashion, and 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."
In her testimony Rabbi Kleinbaum explained the importance of the family to the survival of
the Jewish people and the significance of the Jewish marriage ceremony to the creation of the family
unit. Therefore, as she explained, the commitments made by Shahar and her partner through the
marriage ceremony were not only commitments to each other but to their congregation and to all of
the Jewish people as well.
The Attorney General did not act reasonably. One must focus on what he knew and what
he did. Post-event rationalizations of what he might have done, thought up afterwards in ivory
towers, will not do. Two statements are central, the termination letter and the Attorney General's
statement of position made to the panel of this court. The termination 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.
70 F.2d at 1221. The Attorney General's position before the panel was expressed in a significant
three-prong statement:
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.
Id. at 1224, quoting from the Attorney General's brief. Examine the three prongs. They are: (1)
Shahar's employment was not withdrawn for her association with her partner; (2) It was withdrawn
because she invoked the civil and legal status of being married to another woman; (3) She is free
to associate with her partner for religious reasons.
As to (1), the undisputed evidence is that in fact the Attorney General did terminate Shahar
because of her religious-based association with her partner. As I explain below, he feared that he
might be infringing on Shahar's religious beliefs, but he failed to make reasonable inquiry to
determine if he was. As to (3), plainly Shahar was not free to associate with her partner for religious
purposes. That is exactly what she had done, and it cost her her employment agreement.
The prong that requires discussion is (2). The termination letter is plainly based on the
Attorney General's conclusion that Shahar was falsely holding herself out as becoming married in
the civil and legal sense, i.e., proposing to engage in a "purported marriage." In search of evidence
of holding out by Shahar this court relies upon her use of the words "marriage" and "wedding." This
implicates differing perceptions of what words mean. In a common law/statutory/traditional sense
"marriage" describes a ceremony as a relationship or status between two persons as defined by
common law or statute, involving two heterosexual persons, one male and one female. But, as this
case tells us, that is not the only and ineluctable meaning. To a person of Shahar's faith as a
Reconstructionist Jew "marriage" refers to the formal Jewish wedding ceremony recommended and
carried out pursuant to the participants' Jewish faith by two persons (including two homosexuals)
who have made a lifelong commitment to each other and are bound to each other by the ceremony
in a relationship that can be terminated only within their faith and who, by engaging in the
ceremony, made a commitment to the Jewish people as well. "Marriage" also refers to the status
thereby conveyed upon them. In the eyes of Shahar and her partner they engaged in a Jewish
marriage and they are accepted by their faith as married and accordingly they may use the term
"marriage" to refer to the ceremonial event and to the status created by it.
This court, in its footnote 1, recognizes the duality of meaning that I have described for
"wedding" and "marriage" [and "spouse"]. Throughout its opinion the court attempts to indicate (not
always successfully) by quotation marks and limiting words which meaning it is referring to. But
the decision of the en banc court is based upon, and approves, the Attorney General's attribution to
these words of only a single meaning, the statutory/common-law/traditional meaning, and his
perception that any other meaning is either false or non-existent, i.e., Shahar proposed to engage in
a "purported marriage." The court simply adopts one perception and excludes the other as though
it did not exist for Shahar and for others of her faith.
What the Attorney General knew was that Shahar had used the terms "marriage" and
"spouse" and "marriage ceremony" in referring to the ceremony she planned and to the status to be
created by it. She had used the terms "honeymoon" or "wedding trip" in describing her plans.
Within the office there was information that she planned to send, or had sent, invitations to the
ceremony and that some staff members 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." Possessed of some, or all, of this knowledge, the Attorney General neither saw
Shahar nor talked to her but built a Chinese wall around himself and concluded that she had falsely
invoked the civil/statutory/common-law meaning that he attributed to the terms. We know that it
occurred to him that assigning a single meaning to "marriage" and "wedding ceremony" might not
be correct, for he talked with a female Jewish member of his staff, who told him that 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."
At best the response was ambiguous—on the one hand the wedding was to be done by a rabbi, but
on the other hand the staff member was not aware that it would be recognized in Judaism. As it
turned out, she was correct about the rabbi but incorrect or uninformed about recognition of the
marriage.
Since the Attorney General neither saw nor talked with Shahar the decision by this court
relies upon information supplied to him by senior staffers who had talked with him. The Attorney
General was out of town when the matter first came up. Senior staffers met together several times
and discussed their concerns and possible action. The group considered, but rejected, a suggestion
that there be a meeting with Shahar to discuss the matter. After the Attorney General returned he
met with staffers. He reached the conclusion that the job offer should be withdrawn. In a meeting
with staffers the structure of a "termination meeting" with Shahar was worked out. The Attorney
General would not be present at the meeting. A designated staffer (accompanied by a witness) was
to meet with Shahar, tell her that the offer to her was withdrawn, and deliver to her the termination
letter (in sealed form). The messenger was instructed to make no additional comments and to tell
Shahar if she had comments they should be addressed to the Attorney General in writing. The staff
member-spokesman prepared a written script of what he would say. Ironically, it concluded:
"Thanks again for coming in and have a nice day." The scenario was played out. Shahar asked to
see the Attorney General and was told that he was unavailable.
The Attorney General and his staff acted in ignorance of the religious roots of the association
that Shahar planned, the centrality of it to her faith, and the recognition of it by the religion to which
she was committed. Staff members could recall no discussion of or inquiry into the religious aspects
of the matter. The actions by the Attorney General do not meet the constitutional requirements of
reasonableness.3
If the Attorney General had made reasonable investigation this case might never have arisen.
But not only did he make no further investigation, he closed the door to knowledge. It would have
been easy to confer with Shahar, or have an assistant do so, and explore her desire to use the term
"marriage" and his concern about this usage. If she had then explained that she used the term as
recommended and accepted by her faith, the Attorney General, correctly enlightened, might have
been satisfied. On the other hand, he might have rejected her explanation as insufficient to
ameliorate his concerns. He might have explained to her his fear of possible impact on his office
and could have explored with her ways in which she might disseminate knowledge of the religious
3
This court also suggests that Shahar held herself out as "married" in the
statutory/common-law/traditional sense because she and her partner were granted (presumably
on a homeowners or auto insurance policy) an insurance rate available to married women. But
the undisputed evidence is that Shahar talked to her insurance agent, explained the relationship
between her and her partner, and asked if the rate was available to them. The insurance company
afforded them that rate. This was no false "holding out," no pretext of marriage in the legal
sense. Indeed, it was the contrary. Shahar told the agent the facts of her relationship. If this
incident tends to prove anything it is that the insurance company, possessed of facts, recognized
and accepted the duality of meaning of "marriage" and for its purposes accepted that Shahar was
a married woman.
This court also refers to joint ownership of a home as "holding out." Under
Georgia law joint ownership does not require marital status. O.C.G.A. §§ 44-6-120 and
44-6-190.
It is unclear when the insurance matter occurred. Joint ownership of the house
existed before this case arose. It is clear that the Attorney General did not rely on either
of these factors or even knew of them.
nature of her intimate association. What we do know is that neither the Attorney General, nor the
staff members on whom this court implies that he relied, made inquiry into the religious nature of
her plans beyond the ambiguous or mistaken response from the single Jewish staff member of whom
the Attorney General inquired. The Attorney General walled himself off, forbade comment or
inquiry by staff members who net with Shahar, and terminated the agreement with Shahar on his
erroneous perception of the association that she was asserting. Whatever his views about possible
adverse effects on his office, he did not act reasonably.
Respectfully, I dissent.
KRAVITCH, Senior Circuit Judge, dissenting, in which BARKETT, Circuit Judge,
GODBOLD, Senior Circuit Judge, join:
I adhere to the view, previously expressed in my opinion in the now-vacated panel decision
of this case, that the district court: (1) correctly recognized that Shahar's relationship with her
partner qualifies as a protected intimate association under the First Amendment; and (2) erroneously
concluded that, on the record of this case, Bowers' legitimate interests as a public employer
outweighed Shahar's constitutionally-recognized, associational interests. Accordingly, I dissent
from the en banc court's affirmance of the district court's grant of summary judgment to Bowers.
I begin by noting what this case does not concern. It does not involve a claim that
homosexuals have a constitutional right to marry in the civil or legal sense. Shahar used words, such
as "marriage" and "wedding", in a generic, not a legalistic, sense when she described her relationship
with her partner.1 Due to her religious beliefs, these words also took on a spiritual character for
Shahar, but she never contested her ineligibility for the legal benefits of a civil marriage under
Georgia law. As a result, the court is not called, as the en banc majority implies in Footnote 2 of its
opinion, to engage the "constitutional controversy" over the "institution of marriage."2
1
Such generic meanings are an established part of the English language. Webster's New
Collegiate Dictionary (1979) at 698 (giving "an intimate or close union" as one definition of
marriage), 1318 (noting that wedding is defined, inter alia, as "an act, process, or instance of
joining in close association").
2
Certainly, it would have been more prudent for Shahar to have consistently used terms, such
as "commitment ceremony" and "partnership", to refer to her relationship. Shahar's use of
language, however, does not transform this case into a debate over traditional marriage,
The first issue properly before the court is whether Shahar's relationship with her partner
qualifies as an intimate association under the Constitution. The Supreme Court has held "that the
First Amendment protects those relationships, including family relationships, that presuppose "deep
attachments and commitments to the necessarily few other individuals with whom one shares a
special community of thoughts, experiences, and beliefs but also distinctively personal aspects of
one's life.' " Bd. of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 545, 107 S.Ct. 1940,
1946, 95 L.Ed.2d 474 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 619-20, 104 S.Ct.
3244, 3250-51, 82 L.Ed.2d 462 (1984)). This court has applied the intimate association doctrine
expansively to cover not only well-established familial bonds, but also dating couples. See Wilson
v. Taylor, 733 F.2d 1539 (11th Cir.1984) (ruling that non-marital relationship between police officer
and daughter of reputed, organized crime figure is protected intimate association). Shahar's
relationship with her partner satisfies the Supreme Court's definition of an intimate association in
that it is characterized by "relative smallness, a high degree of selectivity in decisions to begin and
maintain an affiliation, and seclusion from others in critical aspects of the relationship." Roberts,
468 U.S. at 620, 104 S.Ct. at 3250. In light of this court's ruling in Wilson and the Supreme Court's
ruling in Roberts, I conclude that Shahar's relationship with her partner qualifies as a protected
intimate association under the First Amendment.3
particularly given that she only used the controversial terms with members of Bowers' staff in
two conversations and on one conflict of interest form.
3
Bowers apparently recognizes that Shahar's relationship with her partner meets the objective
characteristics of an intimate association outlined in Roberts and its progeny, and therefore, he
contends a further requirement applies, namely that the relationship in question must fall within
the category of associations traditionally endorsed by society at large. In support of this
argument, Bowers cites FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107
L.Ed.2d 603 (1990), a case in which the Supreme Court upheld the constitutionality of a local
licensing ordinance for motels that rented rooms for periods of less than 10 hours. In so ruling,
the Court observed that associations "formed from the use of a motel room for fewer than 10
hours are not those that have "played a critical role in the culture and traditions of the Nation by
cultivating and transmitting shared ideals and beliefs.' " Id. at 237, 110 S.Ct. at 611. In my
view, the foregoing statement stands for the proposition that superficial relationships fail to
qualify as intimate associations under the Constitution, not for the proposition that courts should
deny recognition to deep-seated relationships which are, or have been, unpopular. Because
Shahar's relationship with her partner unquestionably constitutes a close, ongoing interpersonal
association, not an hours-long encounter, FW/PBS does not undermine her claim for
constitutional protection.
I agree with the en banc majority that the right of intimate association is not absolute, and
that in the public employment context adverse actions which implicate intimate associational
interests should be reviewed pursuant to the balancing test first enunciated in Pickering v. Bd. of
Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See Stough v. Gallagher, 967 F.2d
1523, 1527 (11th Cir.1992) (ruling that under Pickering "courts must balance the [protected First
Amendment] interests of the public employees as citizens ... and the interest of the "State as an
employer, in promoting the efficiency of the public services it performs through its employees' "
(quoting Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35)). In my view, however, the en banc
majority has employed a balancing test in name only.4 The en banc majority's opinion devotes
paragraph after paragraph to Bowers' interests, but gives short shrift to Shahar's intimate
associational interests. In contrast, Judge Godbold's dissenting opinion eloquently relates the
sincerity and depth of feeling which underlies Shahar's connection to her partner. Because the
association in question falls close to the familial end of the continuum of human relationships, I
conclude that Shahar's interests weigh heavily in the Pickering balance. See Roberts, 468 U.S. at
620, 104 S.Ct. at 3250-51 (contrasting family ties with large business enterprises in observing that
various associational bonds support "greater and lesser claims to constitutional protection").
On the other side of the balance, the en banc majority first considers Bowers' interests in the
internal workings of his office. Bowers has not asserted that Shahar's association caused any actual
disruption of the functioning of his staff. Instead, Bowers has forecast that Shahar's presence will
undermine morale and create divisions within the Georgia Department of Law because some
employees will view her association as a political statement inconsistent with state laws that the
4
The en banc majority properly recognizes that as the chief law enforcement officer in
Georgia, Bowers' legitimate concerns for the functioning of his staff carry special weight in the
Pickering balance. I believe, however, that the en banc majority goes further, and
inappropriately grants virtually absolute deference to Bowers, without weighing the
countervailing interests on which he impinges. Such an approach categorically exempts Bowers'
employment decisions from scrutiny, and therefore, is inconsistent with well-established
authority mandating particularized decision-making in this context. See, e.g., Bates v. Hunt, 3
F.3d 374, 378 (11th Cir.1993) ("[W]hether a governmental employer has improperly infringed
on an employee's First Amendment rights turns on the specific facts of the particular case: a
"case-by-case' analysis is required.").
Department must enforce. The en banc majority correctly notes that courts must give "substantial
weight to government employers' reasonable predictions of disruption...." Waters v. Churchill, 511
U.S. 661, 673, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686 (1994). The Supreme Court, however, has
rejected the notion that courts must accept blindly all claims of harm conjured by government
employers:
On the other hand, we do not believe that the court must apply the [balancing] test only to
the facts as the employer thought them to be, without considering the reasonableness of the
employer's conclusions. Even in situations where courts have recognized the special
expertise and special needs of certain decisionmakers, the deference to their conclusions has
never been complete.... We think employer decisionmaking will not be unduly burdened by
having courts look to the facts as the employer reasonably found them to be. It may be
unreasonable, for example, for the employer to come to a conclusion based on no evidence
at all. Likewise, it may be unreasonable for an employer to act based on extremely weak
evidence when strong evidence is clearly available—if, for instance, an employee is accused
of writing an improper letter to the editor, and instead of just reading the letter, the employer
decides what it said based on unreliable hearsay.
Id. at 677, 114 S.Ct. at 1889 (emphasis in original).
To the extent Bowers concluded Shahar would disrupt the office because her relationship
could be interpreted as a political statement, he did not act reasonably. Shahar's association with
her partner, although not secret, was private. Shahar's religious marriage ceremony was by
invitation and was held in another state. It was neither announced in the newspapers, nor otherwise
reported publicly.5 Further, Shahar never claimed she had contracted a legal marriage, nor did she
challenge her legal ineligibility for civil marriage. Bowers could and should have ascertained all
of these facts before he took action against Shahar. Instead, as Judge Godbold notes in his dissent,
Bowers categorically refused to discuss his purported concerns with Shahar. Finally, the record
confirms that Bowers had no factual basis to believe Shahar had violated the law or advocated
violations of law.6 Because Bowers failed to act reasonably, under Waters, his predictions regarding
intra-office strife do not weigh very heavily in the balance.
5
The fact that Shahar did not publicize her relationship similarly undercuts Bowers' claim that
Shahar showed poor judgment.
6
In fact, Bowers testified that he "didn't know whether [Shahar] violated the law or not,"
Bowers Dep. at 67, and that he didn't "know the nature of the sexual relation[s between Shahar
and her partner], if any," id. at 69.
Bowers' other main justification for his action centers around his fear of negative public
reaction to his hiring of Shahar. Although public confidence certainly is a relevant concern for
Bowers, it is important to note that 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, 3258-
59, 87 L.Ed.2d 313 (1985); Palmore Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 1882, 80 L.Ed.2d
421 (1984). The en banc majority attempts to justify its emphasis on anticipated public hostility by
pointing to McMullen v. Carson, 754 F.2d 936 (11th Cir.1985), a case in which this court considered
public reaction to the presence of a Ku Klux Klan recruiter in a sheriff's office in affirming a
governmental employment decision. McMullen, however, bears no relationship to this case.
First, unlike McMullen, where the employee publicized his association with the Klan on a
television news broadcast, in this case, Shahar did not make any public statements. Further, the
sheriff's decision in McMullen was not simply based on his prediction that the public would be
biased against the Klan-affiliated employee. Rather, the record established that "violent racism has
become the Klan's trademark ... [that] [d]ivisive, confrontational tactics are used by the Klan during
periods of racial unrest in order to promote recruitment [and that] [t]hose tactics are still being used
in Florida." McMullen, 754 F.2d at 938 (emphasis added). The sheriff and the community thus
reasonably could conclude that the Klan recruiter sanctioned such inflammatory, often illegal,
activities. In contrast, Bowers simply baldly asserted that public reaction to Shahar's pending
employment with his office would have prevented him from serving the state effectively. In light
of the Klan's undisputed history of criminal violence, public reaction in McMullen was not only
more certain, but also likely would have been more severe than anything which reasonably might
have been projected in this case. Finally, although public concern over the Klan's criminally violent
activities is a legitimate basis for governmental action, the Supreme Court has now held that
animosity toward gay people is an illegitimate purpose for state policy, and thus, to prevail in the
balancing of interests, Bowers must cite more than perceived, public distaste for homosexuals. See
generally Romer v. Evans, --- U.S. ----, ----, 116 S.Ct. 1620, 1629, 134 L.Ed.2d 855 (1996).
The foregoing analysis leads me to conclude that, on the record of this case, Shahar's
constitutional interest in pursuing her intimate association with her partner outweighs any threat to
the operation of the Georgia Department of Law. Accordingly, I would reverse the district court's
order granting summary judgment against Shahar.7 For these reasons, I respectfully dissent.
BIRCH, Circuit Judge, dissenting, in which BARKETT, Circuit Judge, GODBOLD and
KRAVITCH, Senior Circuit Judges, joined:
I respectfully dissent. Shahar's relationship with her partner qualifies as a protected intimate
association under the First Amendment for the reasons set out in Judge Kravitch's dissent, pages --- -
----. I agree with both the majority and dissent that, in a government employment context, the
Pickering balancing test is the appropriate test for reviewing official action which implicates First
Amendment intimate associational rights. See Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968). I might have found the majority's application of the Pickering
balancing test more convincing were it not for the Supreme Court's recent decision in Romer v.
Evans, --- U.S. ----, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). In my opinion, the Court's recognition
in Romer that homosexuals, as a class, are entitled to some protection under the Equal Protection
Clause bears on the validity—and therefore the weight in applying the Pickering balancing test—of
Bowers' justifications for his action. With Romer in the balance, the scales tip decidedly in favor
of Shahar because Bowers' asserted interests are not a legitimate basis for infringing Shahar's
constitutionally-protected right of intimate association. For this reason, I dissent from the en banc
court's affirmance of the district court's order granting summary judgment to Bowers.
In Romer, the Supreme Court held that a Colorado constitutional amendment which
discriminates against homosexuals does not pass constitutional muster. Romer, --- U.S. at ----, 116
S.Ct. at 1627. The Court did not decide the issue of whether homosexuals constitute a suspect class
because the Colorado law which was at issue in Romer failed even under the rational basis inquiry.
See id. at ----, 116 S.Ct. at 1627. The import of Romer, however, is to elucidate what the Supreme
7
Because I conclude Shahar's other claims would not warrant relief beyond that to which
Shahar would be entitled pursuant to her intimate association claim, I do not address any other
issues raised in this appeal.
Court considers not to be a rational basis for discrimination against homosexuals.1 The state argued
that the rationale for the law included "respect for other citizens' freedom of association, and in
particular the liberties of landlords or employers who have personal or religious objections to
homosexuality." Id. at ----, 116 S.Ct. at 1629. Over a vigorous dissent by Justice Scalia, a
six-justice majority of the Court rejected the state's rationale, declaring that "animosity toward the
class" of homosexuals is not a legitimate basis for state action. Id. at ----, 116 S.Ct. at 1628; see id.
at ----, 116 S.Ct. at 1629 (Scalia, J., dissenting) ("In holding that homosexuality cannot be singled
out for disfavorable treatment, the Court ... places the prestige of this institution behind the
proposition that opposition to homosexuality is as reprehensible as racial or religious bias."). I am
compelled to conclude that the Court's pronouncement in Romer must inform our consideration of
Shahar's intimate association claim.
The Pickering balance in this case requires us to measure Shahar's right of intimate
association against Bowers' asserted interests in infringing that right in the context of an employment
relationship. The weight we accord to Bowers' asserted interests, however, hinges entirely on the
reasonableness of his predictions as to how Shahar's homosexual relationship might affect or disrupt
the Attorney General's office, see Waters v. Churchill, 511 U.S. 661, 673-78, 114 S.Ct. 1878, 1887-
89, 128 L.Ed.2d 686 (1994); significantly, it is undisputed that Bowers has made no showing of
actual disruption to the office. When we closely examine these predictions, we discover that each
one is based on a series of assumptions and unsupported inferences about Shahar because of her
status as a homosexual.2 I cannot agree with the majority that these inferences and assumptions
1
Although the discriminatory conduct that occurred in Romer arose in a different factual
context than this case, I disagree with the majority's attempt to distinguish Romer to the extent
that it finds it to be wholly irrelevant. The reasoning and principles enunciated in Romer are, in
my view, highly relevant to this case and provide a directive that, at least, should inform our
analysis.
2
The distinction that the majority draws between Shahar's status as a homosexual and her
conduct in entering into a homosexual marriage, see Majority op. at ---- n. 27, is truly a
distinction without a difference, in my opinion. It is a matter of simple logic that only
homosexuals would enter into a homosexual marriage. Bowers' action, therefore, draws a
distinction that, on its face, reaches homosexuals only and distinguishes among similarly situated
people on the basis of one trait only: that they are homosexual.
constitute a legitimate state interest to discriminate against Shahar in light of the Supreme Court's
teaching just last term that mere "animosity toward the class" of homosexuals is not a rational basis
for state action. Romer, --- U.S. at ----, 116 S.Ct. at 1628.
The first inference that Bowers drew from Shahar's status as a lesbian who married3 another
Bowers cannot escape this conclusion by subdividing the class of homosexuals
into those who elect to enter into a homosexual marriage and those who do not, and then
claiming that he discriminated against Shahar not because of her status as a homosexual,
but because she is a homosexual and she entered into a homosexual marriage. The
Supreme Court's decision in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d
1010 (1967) is instructive on this point. In Loving, the Supreme Court struck down as
unconstitutional Virginia's anti-miscegenation statute. As the state of Virginia argued,
that statute was not directed at a specific race. Id. at 7-8, 87 S.Ct. at 1821-22. Yet, the
Supreme Court concluded in Loving that the statute did invoke a racial classification, id.
at 8-9, 87 S.Ct. at 1821-22, notwithstanding the fact that it applied only to blacks and
whites who engaged in the "conduct," Majority op. at ---- n. 27, of marrying a person
from another race. This case is no less about classification on the basis of sexual
orientation than Loving was about classification on the basis of race. According to the
manifest logic of Loving, therefore, Bowers' action drew a classification along lines of
sexual orientation. With the advent of Romer, such a classification has a significant
effect on the Pickering balancing equation.
In his special concurrence, Judge Tjoflat agrees with the majority that the record
does not support an inference that Bowers' decision was based on Shahar's homosexual
status. Considering the fact that the briefs as well as all the opinions in this case are
riddled with references to Shahar's homosexual status and the reasonableness—or
non-reasonableness—of Bowers' inferences from that status, I find it difficult to
understand how we can seriously contend that an inference of discrimination on the basis
of homosexual status cannot be made. The special concurrence attempts to avoid the
equal protection dimension of this case by using a cramped view of causation. See ante
at ---- ("A reasonable trier of fact could find from the record in this case that the Attorney
General's decision was motivated not by the fact that Shahar is a homosexual, but
because she and her partner were maintaining an open homosexual relationship."). It is
easy to appreciate this by imagining, as the special concurrence suggests, see ante at ----,
that Shahar had been dismissed because she was a white woman that married a black
man, and replacing references to homosexuality by references to race in both the majority
and concurring opinions. For example, the footnote which accompanies the above
quoted text from the special concurrence, see ante at ---- n. 9, would have stated: "A
reasonable trier of fact could also find that the Attorney General withdrew Shahar's offer
because he could not trust her; during a telephone conversation in June 1991, Shahar
misled Deputy Attorney General J. Robert Coleman into believing that she was going to
marry a [white] male. A reasonable trier of fact could also or alternatively find that the
Attorney General, as he explained to the Dean of the Emory Law School in a letter
contained in the record of this case below, withdrew the offer because he thought that
Shahar had set him up and planned to use him to advance a [racial-equality] agenda." A
clearer violation of the Equal Protection Clause hardly could have been presented.
3
In connection with Shahar's relationship with her partner, I am using the words "married" or
"marriage" in their generic sense of a committed, intimate union. It may be important to note
that at no time has Shahar violated Georgia law by entering into a homosexual marriage. A
woman is that the public might be hostile to her participation in a same-sex marriage and might view
Shahar's employment by his Department as inconsistent with Georgia law. Bowers argued in his
brief that "the public perception is that "the natural consequence of a marriage is some sort of sexual
conduct, ... and if it's homosexual, it would have to be sodomy.' " Appellee's Panel Brief at 10-11
(quoting Bowers Dep. at 80-81).4 As the Supreme Court made clear in Palmore v. Sidoti, 466 U.S.
429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), the government may not transform private biases into
legitimate state interests by relying on the prejudices of the public.
Private biases may be outside the reach of the law, but the law cannot, directly or indirectly,
give them effect. "Public officials sworn to uphold the Constitution may not avoid a
constitutional duty by bowing to the hypothetical effects of private ... prejudice that they
assume to be both widely and deeply held."
Id. at 433, 104 S.Ct. at 1882 (quoting Palmer v. Thompson, 403 U.S. 217, 260-61, 91 S.Ct. 1940,
1962-63, 29 L.Ed.2d 438 (1971) (White, J., dissenting)); see also City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 448, 105 S.Ct. 3249, 3258-59, 87 L.Ed.2d 313 (1985) (applying the
principle of Palmore to government action reviewed under the rational basis test).
In applying the principle of Palmore to this case, the key question is not whether the
government official reasonably could assume that the public might have a negative reaction to the
employee's presence; it is whether the public's perception upon which the official relies is itself a
legitimate basis for government action. If the public's perception is borne of no more than
unsupported assumptions and stereotypes, it is irrational and cannot serve as the basis of legitimate
Georgia law that was enacted in 1996, almost five years after Shahar was dismissed by Bowers,
declares that Georgia does not recognize same-sex marriages. See O.C.G.A. § 19-3-3.1
(Supp.1996); see also O.C.G.A. § 19-3-30(b)(1) (Supp.1996) ("No marriage license shall be
issued to persons of the same sex."). Shahar has not sought to obtain a marriage certificate or to
have her marriage legally recognized by the state of Georgia.
4
In the face of Shahar's evidence of statistical studies showing that lesbians prefer to engage
in non-sodomy sexual practices, rather than anal or oral sex—the only two practices prohibited
by Georgia's sodomy statute—, Bowers argues that the public is not aware of these statistics and
that, therefore, the public's erroneous assumptions about lesbians take precedence. Erroneous
assumptions about a person, however, are not a rational basis for discriminating against that
person, even if these erroneous assumptions are wide-spread and are religiously-based. See
Romer, --- U.S. at ----, 116 S.Ct. at 1629.
government action.5 In this instance, the public's (alleged) blanket assumption that "if it's
homosexual, it would have to be sodomy" is based not on anything set forth in the record but rather
on public stereotyping and animosity toward homosexuals. Under the principles articulated in
Romer, this does not provide the state with a legitimate, rational basis to discriminate against Shahar.
Bowers' "concern" for the public's perception of homosexuals, therefore, is entitled to no weight in
balancing Shahar's right of intimate association.
Bowers also asserts an interest in dismissing Shahar under the broad rubric of concern for
the internal workings of his office. Bowers advances two main arguments in support of this interest:
(1) Shahar's conduct might undermine the "morale" of the office because some employees might
view her conduct as a political statement inconsistent with Georgia's laws criminalizing sodomy and
denying public benefits to couples engaged in same-sex marriages; and (2) as Attorney General,
Bowers is justified in assuming not only that Shahar would violate Georgia law by committing
sodomy but, moreover, that she necessarily would have a conflict of interest with respect to certain
types of controversial cases involving sodomy or benefits for same-sex partners.
Bowers' argument with respect to the alleged deleterious effect of Shahar's status and
conduct on "morale" within the office is another attempt to legitimize his adverse action against
Shahar on the basis of inferences that others—here, his employees—might derive from her status
as a lesbian. The inferences from Shahar's acknowledged homosexuality that she is likely to violate
Georgia's sodomy law, or would be unable or unwilling to enforce Georgia's sodomy or marriage
laws, is no more justified on behalf of Bowers or his employees than it is on behalf of the public.
Moreover, it is important to note that Bowers' speculation regarding Shahar's ability to handle
certain types of cases is just that: speculation. Bowers has emphatically refused to meet with
Shahar to discuss any of his concerns. Compounding this deficiency in Bowers' assertion that his
5
For this reason, the majority's citation to McMullen v. Carson, 754 F.2d 936 (11th Cir.1985),
in which a state official relied on anticipated public reaction as a basis for dismissing a Klu Klux
Klan recruiter from a sheriff's office, is misplaced. In light of the Klan's undisputed history of
criminal violence against minorities in this country, I can hardly imagine anyone would argue
that the public's assumption that membership in the Klan is antithetical to the work of an
employee of a law enforcement agency is irrational.
prediction is "reasonable" is the fact that Bowers does not make the same assumption with respect
to any of his other employees: He does not assume, for instance, that an unmarried employee who
is openly dating an individual of the opposite sex has likely committed fornication,6 A criminal
offense in Georgia, and thus may have a potential conflict in enforcing the fornication law. Nor, for
that matter, does he apparently assume that married employees could well have committed
sodomy—i.e., oral or anal sex, see O.C.G.A. § 16-6-2—and could themselves have a potential
conflict in enforcing Georgia's sodomy law.7
In short, Bowers' asserted interests in taking adverse action against Shahar are based on
inferences from her status as a homosexual which Bowers claims that he, the public, and department
staff are entitled to make. In light of the Supreme Court's decision in Romer, these status-based
inferences, unsupported by any facts in the record and explained only by animosity toward and
stereotyping of homosexuals, do not constitute a legitimate interest that outweighs Shahar's First
Amendment right of intimate association. Accordingly, I would reverse the district court's order
granting summary judgment to Bowers.
BARKETT, Circuit Judge, dissenting, in which GODBOLD and KRAVITCH, Senior Circuit
Judges, join:
The majority opinion does not meet the constitutionally required process for determining
when the government as employer may curtail a public employee's First Amendment rights. It
6
In Georgia, "[a]n unmarried person commits the offense of fornication when he voluntarily
has sexual intercourse with another person." O.C.G.A. § 16-6-18. I trust that no one would find
unreasonable, in the colloquial sense of the word, the assumption that Georgia's fornication law
is frequently disregarded by the citizenry of Georgia or perhaps even the unmarried staff of its
Department of Law.
7
In the context of a habeas petition by a married heterosexual convicted of sodomy, Moseley
v. Esposito, No. 89-6897-1 (Super. Ct. Dekalb Co.), Bowers' Department of Law moved to strike
the petitioner's motion to discover whether any of Bowers' attorneys had themselves ever
violated the sodomy law because "the personal conduct [of Department attorneys] is no more
relevant than the personal conduct of Petitioner's counsel or the Court." R2-35-Exh. B at 2
(Brief in Support of Motion to Strike and Expunge in Moseley ); see also id. at 4 ("the
information [Moseley] seeks has nothing to do with professional impropriety, but rather is
wholly irrelevant...."). Bowers has no reason for believing that Shahar's personal conduct would
affect her abilities to ethically represent the state, except based on an impermissible inference
from her status as a homosexual. Lawyers are trained to be advocates of legal positions with
which they may personally disagree.
departs not only from Supreme Court precedent establishing that process, but from this circuit's
precedent in applying the process to analogous factual contexts.
Since Pickering, the Supreme Court and several circuits (including this one) have applied
its principles in several First Amendment contexts, including privacy,1 free exercise of religion,2 and
freedom of association.3 These cases make clear that while the balancing test is easier for the
government to satisfy than the strict scrutiny standard used in the nonemployment context, it still
affords significant protection from unwarranted government intrusion into an employee's First
Amendment interests.
As Judge Godbold and Judge Kravitch so clearly demonstrate, notwithstanding its references
to the Pickering test, the majority simply fails to apply the test in the instant case. Instead, the
majority permits a government employer to support termination decisions predicated on the
employee's exercise of First Amendment rights with only a minimal and totally subjective rationale
and without considering the rights of the employee in the balance. In effect, the majority grants
overwhelming, if not complete, deference to the Attorney General's subjective views. See Majority
Op. at --- and --- ("whatever our individual, personal estimates might be, we ... cannot say that the
Attorney General's worries and view of the circumstances that led him to take the adverse personnel
action against Shahar are beyond the broad range of reasonable assessments of the facts;" and "We
must defer to Georgia Attorney General's judgment about what Georgians might perceive unless his
judgment is definitely outside of the broad range of reasonable views").
The only purported support offered by the majority for its wholesale restructuring of
Pickering appears to be its reading of the plurality opinion in Waters v. Churchill, 511 U.S. 661, 114
S.Ct. 1878, 128 L.Ed.2d 686 (1994). However, the sole issue in Waters was "whether the Connick
1
See Fyfe v. Curlee, 902 F.2d 401 (5th Cir.), cert. denied, 498 U.S. 940, 111 S.Ct. 346, 112
L.Ed.2d 310 (1990).
2
See Brown v. Polk County, 61 F.3d 650, 658 (8th Cir.1995)(en banc).
3
See Gregorich v. Lund, 54 F.3d 410, 414 & n. 4 (7th Cir.1995); Boddie v. City of Columbus,
Miss., 989 F.2d 745, 748 (5th Cir.1993); Hatcher v. Board of Pub. Educ. & Orphanage, 809
F.2d 1546, 1559 (11th Cir.1987).
test should be applied to what the government employer thought was said, or to what the trier of fact
ultimately determines to have been said." Id. at 667-68, 114 S.Ct. at 1884. Thus it simply addressed
the method for resolving factual disputes as to whether the affected employee engaged in protected
conduct.4 Indeed, the Court's reasoning in Waters supports Shahar's position. The Court held that
the facts as found by the employer after "objectively reasonable investigation" should establish
whether the conduct (in that case, speech) was constitutionally protected. Id. at 683-84, 114 S.Ct.
at 1892 (Souter, J., concurring, summarizing plurality opinion). Waters asserts Pickering's
principles and reiterates the necessity for constitutionally enforced processes to protect the rights
of government employees.
The Pickering test necessitates a careful, fact-intensive, structured inquiry to "balance the
interests of the public employees, as citizens" in engaging in expression, "and the interest of the
State as an employer, in promoting the efficiency of the public services it performs through its
employees." Stough v. Gallagher, 967 F.2d 1523, 1527 (11th Cir.1992)(internal quotations
omitted). In granting overwhelming deference to an employer's subjective decision to terminate,
the majority ignores a well developed body of circuit precedent that applies the Pickering balancing
test in analogous law enforcement contexts and establishes a workable balance between the
employee's exercise of First Amendment rights and measured deference to law enforcement
officials. See Stough, 967 F.2d at 1523; McCabe v. Sharrett, 12 F.3d 1558 (11th Cir.1994); Waters
v. Chaffin, 684 F.2d 833 (11th Cir.1982); McMullen v. Carson, 754 F.2d 936 (11th Cir.1985).
Stough involved a § 1983 suit where a newly elected sheriff was sued after demoting a police
officer who had campaigned for another candidate. On appeal, in balancing the competing interests,
the court noted that the officer had engaged in political speech which deserves "special protection"
4
In answering that question, the Waters plurality made two observations that the majority
overlooks. First, the plurality stated that it did not believe that balancing must be applied only to
the facts as the employer perceived them, without considering the reasonableness of the
employer's conclusions. Id. at 1889. According to the plurality, "even in situations where courts
have recognized the special expertise and special needs of certain decision makers, the deference
to their conclusions has never been complete." Id. Second, the plurality stated that "it may be
unreasonable, for example, for the employer to come to a conclusion based on no evidence at all
... [and] likewise, it may be unreasonable for an employer to act based on extremely weak
evidence when strong evidence is clearly available." Id.
from the First Amendment, that the officer had spoken during his off-duty hours, and that the
expressions were not rude or insulting. Stough, 967 F.2d at 1529. The court also noted the absence
of actual evidence that the expression adversely affected the sheriff's work environment, and the fact
that the sheriff had previously indicated that personal loyalty was not a prerequisite for the affected
officer's job. Id. at 1529.
In McCabe, the issue was whether a police chief could permissibly transfer a personal
secretary who married a lower-level police officer. The court indicated that, under Pickering, "the
employer's interest will weigh more heavily in the Pickering balance the more closely the challenged
employment action serves the employer's interest in the efficient and effective functioning of the
office." McCabe, 12 F.3d at 1570. The court noted that the police chief produced substantial
evidence that "loyalty and keeping confidences are required for proper performance of the job" from
which the personal secretary was transferred and his concerns about possible disloyalty were not
merely subjective fears, but "objectively reasonable" as a matter of common experience. Id. at 1571-
73. Thus, the court afforded no deference to the police chief's view, and conducted its balancing
based on an objective assessment.
In Waters v. Chaffin, the court considered whether a police chief could discipline a
subordinate police officer for criticizing him in an off-duty conversation with another police officer.
The court noted that the fact that "the employee who speaks out is a police officer does not mean
that the balance is always struck in favor of the state. "Policemen, like teachers and lawyers, are not
relegated to a watered-down version of constitutional rights.' " Id. at 836 (quoting Garrity v. New
Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967)) (emphasis added). Although
the court recognized that the law enforcement context justified allowing a police chief to act on
reasonable predictions of harm, rather than actual evidence of harm, it also indicated that this rule
is less appropriate when the chief officer and the affected officer do not work closely together,
stating that "we will not allow a generalized concern to overshadow the realities of the case."
Chaffin, 684 F.2d at 839-40. In addition, the court gave added weight to the fact that the
subordinate's expression occurred off-duty. Id. at 837-38.
Finally, as Judge Kravitch describes, the McMullen court considered whether a police chief
could fire a low-level at-will clerical employee in the wake of strong community protests following
an employee's announcement on television that he was a recruiter for the Ku Klux Klan. In weighing
the balance of interests, the court noted the uncontradicted evidence that black citizens would
categorically distrust the sheriff's office if a known Klan member were allowed to remain on staff,
and that the sheriff had "no less restrictive means of dealing with the problem." McMullen, 754 F.2d
at 939. The court also noted that public perception of the Klan as a violent racist group was based
on the reality of the Klan's history, and that absent immediate action on the Sheriff's part, "serious
conflict was almost certain to occur." Id. at 938-39. The court then conducted an "independent and
complete review of the record," affording special weight to the task of a law enforcement agency,
but not to the Sheriff's assessment of what was reasonable. Id. at 940. After conducting this review
the court concluded that:
[t]he reaction of a community cannot always dictate constitutional protections to employees.
We hold only that a law enforcement agency does not violate the First Amendment by
discharging an employee whose active participation in an organization with a history of
violent activity, which is antithetical to enforcement of the laws by state officers, has become
known to the public and created an understandably adverse public reaction that seriously and
dangerously threatens to cripple the ability of the law enforcement agency to perform
effectively its public duties.
Id. at 940.
Instead of relying on the holdings in these cases, the majority references McMullen, Sims v.
Metropolitan Dade County, 972 F.2d 1230 (11th Cir.1992), Kinsey v. Salado Independent School
Dist., 950 F.2d 988 (5th Cir.1992) (en banc), Bates v. Hunt, 3 F.3d 374 (11th Cir.1993), and
Pickering generally for the proposition that "government employees who have access to their
employer's confidences or who act as spokespersons for their employers, as well as those employees
with some policy-making role, are in a special class of employees and might seldom prevail under
the First Amendment in keeping their jobs when they conflict with their employers." Majority Op.
at ----. However, the cases cited by the majority simply do not support this proposition.
From McMullen, the majority draws the conclusion that a law enforcement official may act
based on public perception and anticipated effect. But the majority ignores the fact that the
McMullen court's conjectures about future harm were based on present, actual adverse public
reaction to the affected employee's conduct. It also disregards the importance McMullen places on
assessing the validity of public perceptions and the nature of the effect those perceptions would have
on law enforcement. Indeed, McMullen supports the proposition that a government official cannot
hide behind public perception as a means to enforce private prejudice. See also 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.").
Sims addressed the question of the quantum of evidence necessary to overcome qualified
immunity with a Pickering-based claim. See Sims, 972 F.2d at 1236. Because an individual seeking
to overcome qualified immunity must show that an official has violated clearly established law, the
Sims majority held that the plaintiff in that case had to make the extraordinary showing that
"Pickering balancing would lead to the inevitable conclusion that the discharge of the employee was
unlawful." Id. at 1237. To the extent that Sims is even relevant in other contexts, it does not stand
for the broad proposition offered by the majority, since the case states only that "when the employee
serves in a sensitive capacity that requires extensive public contact, the employee's private speech
may pose a substantial danger to the agency's successful functioning." Id. This assertion, of course,
should not be shorn from its context—namely, a case in which the Pickering analysis was
purposefully conducted with a "thumb" on the government side of the scale because of the plaintiff's
extraordinary burden in overcoming qualified immunity, an issue not on appeal in this case.
Kinsey v. Salado Indep. School Dist., 950 F.2d 988 (5th Cir.1992) (en banc ), is also largely
inapposite, as that Fifth Circuit case involved the authority of a school board to remove the
superintendent of schools, a position second only to the school board itself in terms of
policy-making authority. More particularly, Kinsey involved a conflict of political affiliation
between the two highest ranking education policy makers in the county. It thus cannot be read as
support for the notion that "employees with some policy-making role [ ] are in a special class of
employees and might seldom prevail under the First Amendment," Majority Op. at ---- (emphasis
added).
The final case cited by the majority is Bates v. Hunt, 3 F.3d 374 (11th Cir.1993). Bates arose
from the decision of the Alabama Governor to fire an at-will political appointee in his Office of
Constituent Affairs for signing an affidavit supporting a disgruntled former employee who had sued
the Governor. The court determined that the essence of the appointee's job was to speak and act as
a delegate of the Governor to his constituents. Bates, 3 F.3d at 378. Concluding that the Governor
was not required to let an adversary represent him, the court found that the Governor's discharge of
the appointee did not unconstitutionally burden the appointee's speech rights. As in Kinsey, the
court in Bates tightly connected the particular job functions of the affected employee to the grounds
for dismissal, a task the majority here ignores.
The political affiliation case law from the Supreme Court and this circuit simply cannot
support the majority's broad assertion that government employees with "some policy-making role"
enjoy only minimal job security when "they conflict with their employers." Majority Op. at ---- -
----. In the leading political affiliation case, Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63
L.Ed.2d 574 (1980), the Supreme Court squarely rejected a chief public defender's attempt to
terminate two disfavored assistant public defenders because they held confidential policy making
positions. In so ruling, the Court stated that "the ultimate inquiry is not whether the label "policy
maker' or "confidential' fits a particular position; rather, the question is whether the hiring authority
can demonstrate that party affiliation is an appropriate requirement for the effective performance of
the public office involved." Branti, 445 U.S. at 518, 100 S.Ct. at 1294.5 Drawing an analogy to the
5
The Court also recounted the rationale the district court advanced to rebut the idea that the
assistant public defenders were appropriately viewed as policy making, confidential employees
subject to discharge solely on the basis of their political affiliations. According to the district
court, although the assistants had broad responsibilities with respect to particular cases that were
assigned to them, they had limited, if any, responsibility for the overall operation of the office.
Branti, 445 U.S. at 511, 100 S.Ct. at 1291. "They did not act as advisors or formulate plans for
the implementation of the broad goals of the office, and although they made decisions in the
context of specific cases, they do not make decisions about the orientation and operation of the
office in which they work." Id. (internal quotations omitted). The district court also noted that
the assistants "did not occupy any confidential relationship to the policy making process, and did
not have access to confidential documents that influenced policy making deliberations." Id.Many of the same statements could be made about Shahar as a staff attorney. To the extent,
then, that policy making authority and confidentiality legitimately provide the Georgia Attorney
General with a basis for deference in this case, it does not follow that all attorneys in his office
have similar policy making authority or similar confidential relationships with the Attorney
current context, Branti teaches that the ultimate inquiry for balancing purposes is not the nature of
the job Shahar was assigned to, but whether the Attorney General can demonstrate that Shahar's
intimate association hinders her ability to effectively perform the job of a staff attorney. The
majority never considers how Shahar's relatively low status in the Attorney General's Office affects
the balance, but instead implicitly treats all of the attorneys in the office as having equal
responsibilities. It also overlooks the analysis of the district court in the Branti decision, which
suggests that an assistant attorney's exercise of policy making authority and access to confidential
information is not always of the sort that lessens his or her protected interests. See supra note 5.
Additionally, in the absence of any record evidence of "weighing" or "balancing" by the
Attorney General, the majority attempts to provide after-the-fact reasons to support Bowers' side of
the scale. Referencing a controversy in Georgia over issues related to homosexuality and "the
Attorney General's involvement at the heart of that controversy" (Majority Op. at ---- n.
16)(emphasis added), the majority cites to four state court decisions decided after Shahar's
termination (three of which did not involve the Attorney General's office), and three short Attorney
General opinion letters, also written after Shahar's termination. However, the majority fails to
mention post-termination evidence of Shahar's apparently successful performance within the legal
community as a staff lawyer for the City of Atlanta.6
Similarly, the majority indicates that the public might reasonably conclude that Shahar
engages in sodomy, and that such a belief would undermine the Department's efforts to enforce
Georgia's "laws against homosexual sodomy" (Majority Op. at ----). The relevant Georgia statute,
however, does not define sodomy in terms of sexual orientation.7 The public can not reasonably
General.
6
Moreover, to the degree that Georgians have opinions about homosexuality, the law suggests
their opinions are at least mixed. In Georgia's largest city, Atlanta, for instance, elected officials
have passed a municipal ordinance prohibiting discrimination on the basis of sexual orientation.
See City of Atlanta v. McKinney, 265 Ga. 161, 454 S.E.2d 517, 519 (1995). See also, In the
Interest of R.E.W., 220 Ga.App. 861, 471 S.E.2d 6 (granting gay father unsupervised visitation
rights with his child), cert. denied, 267 Ga. 62, 472 S.E.2d 295 (1996).
7
See Ga. Stat. § 16-6-2(a) ("A person commits the offense of sodomy when he or she
performs or submits to any sexual act involving the sex organs of one person and the mouth or
assume therefore that homosexuals in the Attorney General's office are more likely to engage in
prohibited activity than any other member of that office.
While overemphasizing the Attorney General's concerns in the Pickering balance, the
majority also discounts Shaaar's interests. The majority never expressly identifies Shahar's claims
that she has kept her relationship with her partner a largely private and decidedly low-key matter,
and that she has not engaged in any conduct which is at odds with Georgia law. See Majority Op.
at ---- - ----.8 Given the fact that it is not illegal in Georgia for two women to own a house in
common, purchase insurance together or even exchange rings, it is difficult to understand how the
fact that someone might discover these things could possibly affect the ability of the Attorney
General to do his job effectively—the Attorney General is simply not charged with ensuring that his
employees refrain from obtaining the blessing of their religious leaders prior to co-habitating in
Georgia (which is essentially all Shahar has done).9
Finally, I believe that the Attorney General has an evidentiary burden to offer credible
predictions of harm or disruption based on more than mere speculation. The Attorney General's
"worry about his office being involved in litigation in which Shahar's special personal interest might
appear to be in conflict with the State's position" is simply not a reasonable basis upon which to
expect disruption. First, the record contains no evidence that homosexual issues in general
constitute a "special personal interest" for Shahar. Indeed, Shahar was intended for an assignment
involving the review of death penalty cases. Moreover, even if Shahar has a "special personal
interest" in homosexual rights, such an interest tells us nothing about its disruptiveness to her work
anus of another.")
8
Although McCabe and McMullen also involved off-duty conduct, other factors, not present
here, weighed in the balance against the employee in those cases.
9
Georgia's recently enacted ban on same-sex marriages does not alter this analysis. Even if
we assume that the statute is constitutional, it simply states that individuals who are involved in
same-sex unions are not entitled to the full panoply of benefits available to individuals who are
involved in opposite-sex unions. See O.C.G.A. § 19-3-3.1. In so doing, the new statute
implicitly acknowledges the right of same-sex couples to use the word "marriage" to describe
their relationships. See O.C.G.A. § 19-3-3.1(b) ("No marriage between persons of the same sex
shall be recognized as entitled to the benefits of marriage.")
environment. Surely the Attorney General's office has lawyers who have a "special interest" in any
number of topics: abortion, school desegregation, affirmative-action or rights for the disabled, for
instance. When those issues arise and the Attorney General is forced to take a view, some attorneys
may personally disagree with that view and may even ask not to work on the matter, but that does
not establish that those views have been disruptive to the office as a whole. Absent hard evidence,
it is difficult to imagine a court upholding, for example, an Attorney General's assertion that he fired
a black attorney because he believed (assumed?) that attorney's "special interest" in desegregated
schools would prove disruptive to the office.
For these reasons, I respectfully dissent.