Shahar v. Bowers

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation70 F.3d 1218
Docket NumberNo. 93-9345,93-9345
Parties69 Fair Empl.Prac.Cas. (BNA) 837, 67 Empl. Prac. Dec. P 43,875, 64 USLW 2412, 11 IER Cases 321 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.
Decision Date20 December 1995

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

Michael E. Hobbs, Office of State Attorney General, Atlanta, GA, Dorothy Yates Kirkley, Gregory R. Hanthorn, Diane G. Pulley, Jones, Day, Reavis & Pogue, Atlanta, GA, for 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, California, for amicus AAUP, et al.

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

Before KRAVITCH, Circuit Judge, and GODBOLD and MORGAN, Senior Circuit Judges.

GODBOLD, Senior Circuit Judge:

The appellant Robin Joy Shahar is a homosexual female who was offered employment with the Department of Law of the State of Georgia to begin at a future date. She accepted the offer, but before the employment began she made known her plans to engage in a marriage ceremony with her female companion. The Attorney General of Georgia, who has ultimate responsibility for hiring and employment practices of the Department of Law, learned of her plans and, before the marriage ceremony took place, terminated the offer of employment.

Shahar sued the Attorney General under 42 U.S.C. Sec. 1983, alleging violation of her rights of intimate association, of her freedom of religion, and of equal protection and substantive due process. She sought declaratory and injunctive relief, including placement as a staff attorney in the Department and compensatory and punitive damages from the defendant in his individual capacity. The district court denied plaintiff's motion for summary judgment and granted defendant's motion for summary judgment.

The court unanimously agrees to affirm the conclusion of the district court that Shahar's right of intimate association was burdened. The court holds, however, Judge Kravitch dissenting, that the district court erred in applying a balancing test to determine whether Shahar's rights under the Constitution were violated and that the case must be remanded to the district court for it to consider these issues under a strict scrutiny standard. 1

The court affirms the summary judgment for the Attorney General on Shahar's free expression and equal protection claims for reasons set out by Judges Kravitch and Morgan in their separate opinions. Judge Godbold disagrees with these affirmances.

Shahar's claim of violation of substantive due process is not substantially presented on appeal. All judges agree that summary judgment for the defendant on that claim must be affirmed.

Shahar, then known as Robin Brown, worked as a law clerk in the Department of Law during the summer of 1990. During her clerkship she told other clerks that she was a lesbian. She talked with Mary Beth Westmoreland, an attorney with the Department, explained the relationship with her partner, Francine Greenfield, and discussed whether it would be appropriate to bring Greenfield to a picnic to be given by the departmental division in which Shahar was working. Westmoreland discouraged the proposal, and Shahar did not bring Greenfield to the picnic.

In September 1990 defendant offered Shahar a permanent position as a Department attorney to commence in the fall of 1991, and she accepted. She had been a Phi Beta Kappa as an undergraduate. She graduated from Emory Law School in the spring of 1991 with an outstanding academic record (sixth in her class academically), as an editor of the law review, and the recipient of a distinguished scholarship.

In the fall of 1990, following her acceptance, Shahar completed a standard personnel form of the Department. In the "Family Status" section she showed her "Marital Status" as "Engaged." In response to "Spouse" she added the word "Future" and inserted the name of Francine M. Greenfield. She identified her "Future Spouse's Occupation" as an employee of a department of the State of Georgia, her purpose being to reveal that Greenfield was employed by the State. The Department received the form and filed it without fully reviewing it.

In June of 1991, by telephone, Shahar discussed with Deputy Attorney General Bob Coleman her upcoming employment. He asked whether she could begin work in mid-September, and she responded that she would prefer to begin work later in the month in light of her upcoming wedding. Shahar did not tell Coleman that she planned marriage to another woman but did state that she would be changing her last name from Brown to Shahar. Coleman mentioned Shahar's upcoming wedding to Senior Assistant Attorney General Jeffrey Milsteen, who subsequently learned from Susan Rutherford, a Department attorney, that plaintiff's planned wedding would be to another woman. Rutherford and another Department employee had seen Shahar in a restaurant in the spring of 1991, and Shahar told them that she and her female dinner companion were preparing for their upcoming wedding.

Attorney General Bowers learned that the planned wedding was to another woman. He discussed the matter with his staff. Information conveyed to him included Shahar's personnel form, Coleman's description of his telephone conversation with Shahar, information concerning the restaurant encounter between Rutherford and Shahar, information of unspecified origin that Shahar planned to send or already had sent invitations to the ceremony and that some staff of the Department of Law were on the invitation list, and other information that, as the Attorney General described it, the planned ceremony would be "a big or church wedding, I don't remember which." The Attorney General talked with a female Jewish member of his staff, who told him the wedding was to be performed by a rabbi from New York who performed homosexual marriages but that "she was not aware of homosexual marriages or gay and lesbian marriages being recognized in Judaism."

The Attorney General wrote to Shahar on July 9, withdrawing the offer of employment. The letter said in part:

This action has become necessary in light of information which has only recently come to my attention relating to a purported marriage between you and another woman. As the chief legal officer of this state inaction on my part would constitute tacit approval of this purported marriage and jeopardize the proper function of this office.

Before the wedding Brown and Greenfield changed their names to Shahar, which refers to being in a search for God.

On July 28 a rabbi performed a Jewish marriage ceremony for the couple, conducted in a state park in South Carolina. This suit was filed in October 1991.

I. The District Court's Findings

With respect to interference with intimate association, the court defined the relevant association as Shahar's relationship with her lesbian partner whom she intended to marry. It declined to decide whether this associational relationship fell within the definition of traditional family relationships described in Roberts v. U.S. Jaycees, 468 U.S. 609, 619-20, 104 S.Ct. 3244, 3250-51, 82 L.Ed.2d 462 (1984). It decided instead that it was within the "broad range of [constitutionally protected] human relationships" that Roberts described as falling between familial relationships and associations such as large business enterprises. Id. at 620, 104 S.Ct. at 3250.

The court then found, based on undisputed facts, and applying the balancing test of Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), that the defendant's articulated and unrebutted concerns regarding Shahar's employment outweighed her interests in the intimate association with her female partner. The court did not address Shahar's expressive association claim because it felt that it overlapped her free exercise claim and required no greater constitutional protection than her intimate association claim.

With respect to free exercise, the court assumed without deciding that defendant indirectly burdened Shahar's right to freely exercise her religion, but again it applied Pickering because it said it found no other controlling guideline, and it held that any burden suffered by Shahar was justified in light of the unique governmental concerns involved in efficient operation of the Department.

As to equal protection, Shahar contended that by withdrawing the offer of employment the defendant acted with intent to discriminate against her on the basis of her sexual orientation. The court held that defendant's classification, if any, was not based upon mere sexual orientation. It also found that, even if Shahar could establish that defendant acted in part based upon a general classification of plaintiff as a homosexual, she had not presented sufficient facts to raise a genuine issue of fact whether defendant acted with an impermissible intent to discriminate.

As to substantive due process, the court granted summary judgment because plaintiff conceded that she had no property interest in the promised employment and made no showing of deprivation of any liberty interest.

II. The Contours of Intimate Association

Shahar's position is that the district court correctly found that her intimate association was constitutionally protected but erred in applying the Pickering balancing test. The Attorney General's position is that the district court erred in finding that Shahar's association was constitutionally protected, but, if it was, the court correctly applied Pickering to find Shahar's associational interests were outweighed by the interests of the Attorney General.

The Attorney General...

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5 cases
  • Shahar v. Bowers, 93-9345
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 30 May 1997
    ...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 ......
  • Legal Aid Soc. of Hawaii v. Legal Services Corp., Civil No. 97-00032 ACK.
    • United States
    • Supreme Court of Hawai'i
    • 14 February 1997 the First Amendment.' 481 U.S. 537, 548, 107 S.Ct. 1940, 1947, 95 L.Ed.2d 474 (1987) (citations omitted); see also Shahar v. Bowers, 70 F.3d 1218, 1225 (11th Cir.1995) ("Expressive association is the `right to associate for the purpose of engaging in those activities protected by the Fir......
  • Marcum v. Catron, Civ. 98-435.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • 28 September 1999
    ...later vacated, found that the intimate association between the Page 736 plaintiff and her partner was protected. Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995). The Eleventh Circuit subsequently held that while it would assume for purposes of the motion that such a right existed, it would ......
  • Montgomery v. Carr, 94-4289
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 4 December 1996
    ...relief could be granted. 6 We do not address one of the Eleventh Circuit cases cited by the Montgomerys. The panel in Shahar v. Bowers, 70 F.3d 1218 (11th Cir.1995), a case where the plaintiff claimed that her right to marry a lesbian companion was infringed when an offer of employment was ......
  • Request a trial to view additional results
1 books & journal articles
  • The myth of superiority.
    • United States
    • Constitutional Commentary Vol. 16 No. 3, December 1999
    • 22 December 1999
    ...(1986). (53.) Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc), cert. denied, 118 S. Ct. 693 (1998). (54.) Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995), vacated upon grant of religion banc, 78 F.3d 499 (11th Cir. 1996) (on (55.) Shahar, 114 F.3d at 1111 n.27. (56.) As Neuborne ......

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