Shahar v. Bowers

• Decision Date: 30 May 1997
• Docket Number: No. 93-9345,93-9345
• Citation: 114 F.3d 1097
• Parties: 70 Empl. Prac. Dec. P 44,739, 65 USLW 2795, 12 IER Cases 1582, 11 Fla. L. Weekly Fed. C 36 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1097

114 F.3d 1097

70 Empl. Prac. Dec. P 44,739, 65 USLW

2795, 12 IER Cases 1582,

11 Fla. L. Weekly Fed. C 36

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.

No. 93-9345.

United States Court of Appeals Eleventh Circuit.

May 30, 1997.

Debra E. Schwartz, Atlanta, GA, William B. Rubenstein, Ruth E. Harlow, American Civil Liberties Union Foundation, New York City, for Plaintiff-Appellant.

Michael E. Hobbs, Office of State Attorney General, Atlanta, GA, Dorothy Yates Kirkley, Jones, Day, Reavis & Pogue, Atlanta, GA Gregory R. Hanthorn, Diane G. Pulley, Jones, Day, Reavis & Pogue, Atlanta, GA, for Defendant-Appellee.

Robert B. Remar, Georgia Kay Lord, Kirwan, Goger, Chesin & Parks, Atlanta, GA, for Amicus: Georgia Psychological Association.

Kathleen M. Sullivan, Stanford Law School, Stanford, CA, for Amicus: AAUP, et al.

Appeal from the United States District Court for the Northern District of Georgia.

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 "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. 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 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.

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

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