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Title:Shahar v. Bowers - Petition for Writ of Certiorari
From: wdoherty
Posted on: Wed Nov 05 14:59:17 1997

Abstract:
October 30, 1997

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See Counsel Connect's Gay and Lesbian Issues forum.

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IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

ROBIN JOY SHAHAR,

Petitioner,

v.

MICHAEL J. BOWERS, individually and THURBERT E. BAKER, in his official capacity as Attorney General of the State of Georgia,

Respondents.

Filed 10-30-97

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Steven R. Shapiro
Matthew A. Coles
American Civil Liberties
Union Foundation
125 Broad Street
New York, New York 10004
(212) 549-2500

Debra Schwartz
Stanford, Fagan & Giolito
1401 Peachtree Street
Atlanta, Georgia 30309
(404) 897-1000

Ruth E. Harlow
(Counsel of Record)
Patricia M. Logue
Beatrice Dohrn
Lambda Legal Defense And
Education Fund, Inc.
120 Wall Street
New York, New York 10005
(212) 809-8585

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE
Factual Background
Proceedings Below
1. District Court Disposition .
2. Panel Disposition
3. En Banc Disposition
4. Disposition of Rehearing Petition and Motion

REASONS FOR GRANTING THE WRIT

I. The Ruling Below, Contrary To This Court's Prior Decisions, Deletes A Crucial Step In The Pickering Test And Gives Too Little Protection To Associational Rights

A. By Failing To Consider The Employee's Specific Interests In Constitutionally Protected Activity, The Ruling Below Subverts The Central Tenet Of Pickering Balancing

B. The Ruling Below Departs From Roberts And Rotary Club In Its Approach To Whether The Right Of Association Shields A Particular Relationship

1. Shahar's Deep, Personal, Exclusive Partnership Exemplifies The Characteristics Of A Centrally Protected Intimate Association

2. Shahar's Cultural, Social and Religious Activity Also Constitutes Core Expressive Association

II. The Court of Appeals Further Departed From Pickering And Its Progeny By Considering Uninvestigated Speculation And After-Acquired Evidence To Support The Employer's Asserted Interests, Instead Of Examining The Facts The Employer Knew At The Time Of The Decision

III. The Court Of Appeals Improperly Rejected The Relevance Of Equal Protection Principles In Pickering Cases And Weighed Illegitimate Government Interests In The Employer's Favor

CONCLUSION

APPENDIX

En Banc Petition For Rehearing Decision

En Banc Decision Order Vacating Panel Decision Panel Decision District Court Decision

TABLE OF AUTHORITIES

Cases

Board of County Comm'rs v. Umbehr, 518 U.S. 116 S. Ct.2342 (1996)

Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537 (1987)

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)

Connick v. Myers, 461 U.S. 138 (1983)

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995)

McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995)

New York State Club Ass 'n v. City of New York 487 U.S. 1 (1988)

Palmore v. Sidoti, 466 U.S. 429 (1984)

Pickering v. Board of Education, 391 U.S. 563 (1968)

Rankin v. McPherson, 483 U.S.378 (1987)

Roberts v. United States Jaycees, 468 U.S. 609 (1984)

Romer v. Evans, 517 U.S.116 S.Ct.1620 (1996)

Waters v. Churchill, 511 U.S. 661 (1994)

Statutes 28 U.S C. Section 1254(1)

28 U S.C. Section 1331

28 U.S.C. Section 1343

Ga. Code Ann. Section 16-6-2 (1997)

Ga. Code Ann. Section 16-6-18 (1997)

Ga. Code Ann. Section 16-6-19 (1997)

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QUESTIONS PRESENTED

1. Was the Pickering v. Board of Education, 391 U.S. 563 (1968), balancing test improperly distorted below, when the court of appeals failed to give particularized consideration to petitioner's interests and failed to find the creation, celebration and sustenance of her most important personal relationship protected by, and at the core of, one or both aspects of the fundamental right of association?

2. Must a court, for purposes of the Pickering test, assess the reasonableness and weight, if any, of a public employer's fears of disruption based only on the facts the employer knew at the time the employment decision was made, specifically excluding from its consideration any uninvestigated, factually unfounded speculation and any after acquired evidence?

3. In the Pickering context, is equal protection jurisprudence relevant to determining the legitimacy and weight, if any, of a public employer's fears of disruption, when the employer relied on the employee's belonging to an unpopular group (here, lesbians and gay men) to judge her behavior more harshly than the behavior of others?

PARTIES TO THE PROCEEDING

The caption of the case includes the names of all parties.

Robin Shahar respectfully petitions for a writ of certiorari to review the judgment, and postjudgment motion ruling, of the United States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The decision of the en banc court of appeals denying rehearing and denying Shahar's motion to supplement the record is reported at 120 F.3d 211. App. 1a The decision of the en bane court on the merits is reported at 114 F.3d 1097. App. 10a The panel decision of the court of appeals is reported at 70 F.3d 1218, App.94a and vacated at 78 F.3d 499, App.93a. The district court's decision is reported at 836 F.Supp. 859. App.13 la.

JURISDICTION

On August 1, 1997, the court of appeals denied Shahar's timely petition for rehearing. App.7a. The judgment sought to be reviewed was entered on May 30, 1997. App. 10a. This Court has jurisdiction pursuant to 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States Constitution provides, in relevant part:

Congress shall make no law . . . prohibiting the free exercise [of religion]; or abridging the freedom of speech . . .; or the right of the people peaceably to assemble ....

The Fourteenth Amendment to the United States Constitution provides, in relevant part:

No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

This action challenges former Georgia Attorney General Michael Bowers' refusal to allow Robin Shahar to join the Georgia Department of Law (the "Department") as an entrylevel staff attorney, despite a previously proffered and accepted employment offer. Bowers dismissed Shahar when he learned that she was a lesbian and that she planned to celebrate a religious wedding with her female partner. Shahar contends that Bowers' action violated her First Amendment rights and the Equal Protection Clause, and that the court below -- contrary to this Court's prior guidance -- distorted important, broadly applicable propositions of constitutional law in affirming summary judgment for Bowers.

Factual Background

Shahar attended Emory University's School of Law, where she served as a notes editor on the law review and graduated sixth in her class. After her second year, she worked as a summer law clerk for the Department. That clerkship led to an offer of permanent employment, with Bowers writing to Shahar that "[m]y staff and I were very pleased with your performance." R1-2-Exh. A./1 In November 1990, Shahar accepted the offer. R1-2-Exh. B.

In 1990, Shahar and Francine M. Greenfield began preparing for a Jewish wedding ceremony to make a permanent, life-long commitment to one another. The couple first met in 1986, began dating, and eventually began living together. By 1990, their relationship had deepened to the point where Greenfield was the one "person with whom [Shahar] wanted to share [her] life in the most intimate and committed way[.]" R2-34-Shahar Dec. Para. 9

Both women are devout Jews and active members of a Reconstructionist synagogue in Atlanta. Shahar 6-9. Their commitment ceremony was to be performed by their rabbi, Sharon Kleinbaum, and take place before invited family, friends, and members of their synagogue. By participating in the traditional kiddushin /2 ritual, Shahar and her partner sought to "create a Jewish family" and to celebrate that union within their religious and personal spheres. R2-34 Shahar Dec. Para. 5-11. At the same time, they realized "that our ceremony would have no legal significance whatsoever." Id. at Para. 8. (In particular, Shahar never sought any kind of benefit or approval of her relationship from the Department.) The two women eventually chose July 28, 1991, as the date for this ceremony.

In mid-June of 1991, various Department managers learned skeletal information about Shahar's wedding plans. These managers discussed the information with Bowers, who then decided to terminate Shahar's employment. As Bowers testified, the entire universe of information about Shahar's plans on which he based his decision consisted of:
(a) in a brief phone conversation about starting work, Shahar told Deputy Attorney General Robert Coleman that she was getting married later in the summer, traveling to Greece after the wedding, and changing her last name; /3

(b) Department attorney Susan Rutherford, who had spoken with Shahar about her wedding preparations and had met Shahar's partner, told Jeffrey Milsteen, a senior assistant attorney general, that the wedding was with another woman;

(c) Shahar, when accepting her job offer, had indicated on a confidential personnel form seeking family background information for conflict-of-interest purposes that her "future spouse's name" was "Francine M. Greenfield'' and that Greenfield worked for Georgia State University, R2-34-Plaintiff's Material Facts, Exh. A; Bowers 27, 29, 33-34;

(d) Bowers had information "that there are invitations being sent out or had been sent out and . . . somebody on staff or more than one had either received invitations or were to," Bowers 38;

(e) he also had a vague and inaccurate indication, "something to the effect [that it was to be] a big or church wedding, I can't remember which," id.; and

(f) Bowers knew "that this was to be a wedding performed by a rabbi, I think from New York," Bowers 40.

See generally Bowers 29-40, 50-56. Among the many gaps in his information, Bowers did not know where the ceremony was to take place (South Carolina), did not "have any idea of the number of individuals that would be invited," and did not know any other facts relevant to the ceremony's "public or private" nature. Bowers 60-61.

Bowers first learned that Shahar was a lesbian through the information summarized above. Bowers 67-68. Likewise, the committee that recommended hiring Shahar to Bowers in the fall of 1990 had not known her sexual orientation. Milsteen 25-26, 38.

Bowers and his staff, aside from talking and speculating among themselves, made only one inquiry for information outside the Department: someone called Georgia State University to confirm that Francine Greenfield was a woman. Bowers 55-56. Internally, Bowers asked two Jewish attorneys for their opinions about Judaism and "homosexual marriages." Bowers 40, 50.

Until Shahar was handed her letter of dismissal by Bowers' subordinates, who were under instructions not to discuss anything with her, Coleman 88, she never knew that her personal life was the focus of attention within the Department or that her employment was at risk. The July 9, 1991, dismissal letter from Bowers to Shahar stated in full:

I regret to inform you that I must withdraw the State Law Department's offer of employment which was made to you in the fall of 1990, which was to commence on September 23, 1991, to serve at my pleasure. 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 functioning of this office.

R1-2-Exh. D. Shahar was shocked by the letter, and asked to speak with Bowers to discuss the matter, but she was denied that opportunity. Bowers 70-72.

According to their deposition testimony, Bowers and his deputies had decided -- before the ceremony, long before her starting date, and with no knowledge of any public statements or activity -- that Shahar was thrusting her committed lesbian relationship before the eyes of the general public and into her professional life, and that she was making strong political statements through her upcoming religious marriage. See Bowers 41-42, 60-66; Manis 37, 52.

In particular, Bowers viewed "[j]ust the fact" of the upcoming religious marriage as a political statement: "To me it says that we are not going -- the people participating, Ms. Shahar and Ms. Greenfield, were saying in effect, we don't believe in, respect, or don't plan to uphold the law of marriage in this state." Bowers 62-63. In addition, to Bowers "[j]ust the fact of participating in a homosexual marriage constitutes taking a stance on the issue of the application of the [Georgia sodomy statute] to homosexuality and such relationships[.]" Bowers 79. Bowers guessed, with no actual knowledge of Shahar's sexual behavior nor any facts about lesbian sexual practices in general, that the public would share his belief that Shahar had violated the sodomy law and that such a public perception would interfere with her job performance. Bowers 69, 79-81. Bowers assumed that employing Shahar would make it difficult for the Department to handle "lots of kinds of cases" with gay or lesbian parties, including "child custody, deprivation cases" involving "a homosexual couple." Bowers 42-43. Finally, Bowers also believed that, "by engaging in a homosexual marriage," Shahar had shown that she lacked "good judgment." Bowers 83.

In fact, Shahar has never made any statement about Georgia's marriage laws. Shahar never sought a marriage incense, or made any attempt to transform her purely religious and personal relationship into a legal (civil) marriage. Shahar 5; R1-2 Para. 10; R2-34-Shahar Dec. Para. 19. As Bowers concedes, Shahar broke no law in celebrating her religious and personal commitment to another woman. Bowers 63. Nor is there any evidence that Shahar has broken Georgia's sodomy law. Bowers 69.

Georgia's consensual sodomy offense prohibits oral or anal sex for any couple, heterosexual or gay. See Ga. Code Ann. Section 16-6-2 (1997). The Department has handled only three cases involving the law's enforcement in recent decades, including one against a married man for sodomy with his wife. R2-35-Mem. 8-10. And Bowers' office submitted court papers in that heterosexual case emphasizing that "[t]he personal conduct of [the state's] counsel is no more relevant to [their work on a case challenging the validity of the consensual sodomy law] than the personal conduct of Petitioner's counsel or the Court." R2-35-Exh. B at 2; id. at 3-4 (information about Department attorneys' private, consensual sexual behavior "has nothing to do with professional impropriety" and is "wholly irrelevant" to their professional role).

Proceedings Below

1. District Court Disposition. The district court had jurisdiction under 28 U.S.C. Sections 1331 and 1343. In that court, Bowers moved for summary judgment on all claims. Shahar cross-moved on her intimate association, expressive association, and free exercise claims.

Applying the criteria described in Roberts v. United States Jaycees, 468 U.S. 609 (1984), the district court held that "plaintiff's relationship with her female partner constitutes a constitutionally-protected intimate association." App. 137a. It found that "plaintiff pursued her desired association only at the price of her desired employment." Id. The court, however, found Bowers' concerns to be "sufficiently supported" and granted him summary judgment on the intimate association cause of action. App.140a-42a. The district court also ruled in Bowers' favor on the free exercise and equal protection claims. The court declined to rule separately on expressive association.

2. Panel Disposition. On appeal, a panel of the Eleventh Circuit reversed the judgment for Bowers on Shahar's freedom of association claims, and remanded to the district court for consideration of those claims under strict scrutiny. App.94a-95a, 106a-07a. The panel affirmed summary judgment for Bowers on the free exercise and equal protection claims.

The panel unanimously agreed with the district court that Shahar's relationship was a constitutionally protected intimate association, App.94a-95a, and found the relationship to be a protected expressive association as well, App.110a, 127a. The panel also agreed that, because Bowers dismissed Shahar for her protected associational activity, his decision must be given meaningful constitutional review. Judge Kravitch, who concurred in part, dissented from the use of strict scrutiny and applied the Pickering balancing test instead.

After reviewing the undisputed facts under the Pickering standard, Judge Kravitch concluded that "Shahar's constitutional interest in pursuing her intimate association outweighs any threat to the efficient operation of the Georgia Department of Law"; thus, she would have granted summary judgment to Shahar. App.126a. Judge Kravitch emphasized that "[t]he relationship celebrated through Shahar's and Greenfield's commitment ceremony is close to the core of the constitutional right to intimate association[.]" App.123a. By contrast, Judge Kravitch found Bowers' justifications devoid of factual support. App.124a-26a. The record indicated instead that Bowers relied on dubious assumptions and illegitimate government concerns:

Shahar's commitment ceremony and relationship were not, before the inception of this case, thrust into the public domain. Even if members of the public were to become aware of and misunderstand the asserted status of the relationship between Shahar and her partner, it is questionable whether they would infer that the Department, by employing Shahar, was acquiescing in the legally legitimate status of the union. Shahar neither violated Georgia's laws pertaining to marriage nor attempted to avail herself of any legal rights or privileges reserved for legally married people. And there is no evidence that Shahar violated Georgia's sodomy law. Catering to private prejudice is not a legitimate government interest.

App.125a-26a (footnote omitted)(citations omitted).

3. En Banc Disposition. The Eleventh Circuit granted Bowers' application for rehearing en bane. The en bane court then affirmed the district court's summary judgment for Bowers. app. 10a. Four judges dissented and would have granted summary judgment to Shahar on her intimate association claim. App.56a, 73a. Three dissenters also would have granted her judgment on the expressive association claim. App.56a.

The majority expressed "doubt" that the rights of intimate or expressive association protect Shahar's relationship, without ever analyzing Shahar's relationship under the clear standards for protected intimate and expressive associations that this Court has established. App. 11a-12a. The court apparently viewed Shahar as asking for the creation of new rights. App.11a n.2. /4

Nevertheless, the majority "assume[d] (for the sake of argument only) that Plaintiff has these rights" and proceeded to assess the case under Pickering. App.13a. Although its opinion purports at one point to accord the "claimed associational rights . . . substantial weight[,]" App.28a, the majority never considered the nature of the interests on Shahar's side of the balance and thus never engaged in a case-specific weighing of her particular First Amendment interests. According to the majority,

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 the Pickering balance.

App.27a.

In concluding that Bowers prevailed under this abstract balancing, the court relied upon facts (some inaccurately described) that Bowers did not know at the time of his decisions and upon occurrences that happened long after the termination. /6 App.23a-24a, 29a, 31a, 35a n.24. The majority viewed such information as "evidence of the reasonableness of the Attorney General's concerns . . . at the time he made his decision," App.29a n.21 (emphasis added); Shahar's request for reinstatement, the court said, made after-acquired evidence "especially relevant" at even the liability stage. Id.

Furthermore, the majority found that Bowers' predictions of future disruption were "reasonable" and gave those predictions controlling weight, despite his scant concrete information and the lack of any input from Shahar herself as to how she would conduct herself during and after the wedding ceremony and as a staff attorney. App.26a n.l8. ("We cannot say that the Attorney General acted unreasonably in relying on this [limited] information or in acting without his having spoken with Shahar.").

Finally, the majority endorsed Bowers' reliance on "perceived public hostility" toward Shahar. App.33a. The court gave considerable weight to Bowers' selective fear of possible public perceptions about a consensual sodomy law violation, and his selective use of the Department's history in upholding that law (emphasizing Bowers v. Hardwick, 478 U.S. 186 (1986)), to justify firing this lesbian attorney. The court specifically rejected Shahar's argument that Bowers' adverse judgments about, and reliance on potential "public reaction" to, her behavior and capabilities as a lesbian -while simultaneously dismissing the relevance of potential "public reaction" to the personal lives and behavior of heterosexual Department attorneys -- rendered his concerns illegitimate under equal protection jurisprudence and thus entitled to no weight in his favor under Pickering. App.36a & n.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, see e.g. Palmore v. Sidoti, 104 S.Ct. 1879 (1984), convinces us otherwise.").

Judge Tjoflat, specially concurring, concluded that the majority erred as a matter of law by avoiding the constitutional question of whether Shahar's relationship is protected by intimate and/or expressive association. In his view, "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." App.40a. Moreover, Judge Tjoflat wrote, if Shahar's intimate association were entitled to full constitutional protection,

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.

App.50a-51a.

In three dissenting opinions joined reciprocally, Judges Godbold, Kravitch and Barkett concluded that "Shahar enjoyed rights of intimate association and expressive association and that the Attorney General violated those rights[.]" App.56a. The dissenters criticized the majority for "discount[ing] Shahar's interests." App.90a. The Godbold opinion further emphasized:

If the Attorney General had made reasonable investigation this case might never have arisen. ... The Attorney General walled himself off, forbade comment or inquiry by staff members who met 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.

App.64a-65a. Judge Kravitch similarly criticized the lack of factual support and investigation behind Bowers' decision./7

She stressed that, under Waters v. Churchill, 511 U.S. 661 (1994)(plurality), employer predictions of disruption must be reasonably arrived at to be given significant weight on the employer's side of the Pickering balance. App.69a-70a.

The fourth dissenter, Judge Birch, explained that each of Bowers' "predictions . . . is based on a series of assumptions and unsupported inferences about Shahar because of her status as a homosexual." App.74a (emphasis in original). /8 Judge Birch thus reasoned,

With Romer in the balance, the [Pickering] scales tip decidedly in favor of Shahar because Bowers's interests are not a legitimate basis for infringing Shahar's constitutionally-protected right of intimate association.

App.73a. Echoing that view, Judge Kravitch wrote that "animosity toward gay people is an illegitimate purpose for state policy," in the employment context as in others, "and thus, to prevail in the balancing of interests, Bowers must cite more than perceived, public distaste for homosexuals." App.72a.

4. Disposition of Rehearing Petition and Motion. Shahar filed a petition for rehearing, arguing that the en bane court had erred in its legal conclusions and that, in addition, new evidence made rehearing appropriate. The court denied Shahar's petition. App.7a.

Shahar also moved for judicial notice of, or otherwise to supplement the record with, the new information that Bowers had announced a few days after the en bane ruling. In responding to the motion, Bowers raised "no objection to the Court's including the proffered information in the record[.]" Response of Attorney General Baker and Former Attorney General Bowers at 7. The "proffered information" consisted of Bowers' admission that -- while Attorney General and still married to his wife -- he had participated in a decade-long, adulterous affair with a woman who had been employed in the Department. See id. at 1-2 & Exh. 1; Adams Dec. & Exh. A-B. Adultery and fornication, like consensual oral or anal sex for all couples, are illegal in Georgia. See Ga. Code Ann. Sections16-6-18 & 19 (1997).

The court of appeals refused to take judicial notice of the facts admitted by Bowers, or to allow Shahar some other means of supplementing the record. Three judges dissented, emphasizing:

[Bowers argued] that Shahar could not function as a trustworthy member of his staff because she likely had a conflict of interest with respect to Georgia's sodomy laws. Considering that Bowers admits that, perhaps at the very time he fired Shahar, he was also breaking Georgia's adultery and fornication laws, his justification is entitled to no weight. At the very least, Bowers' justification evinces discrimination against Shahar solely on the basis of her status as a homosexual, since Bowers did not make the same assumption about conflict of interest with respect to himself or other lawyers in his department.

Judicial notice is obviously appropriate . Surely this court can know the content of a statement that is relevant, accurate because made by Bowers himself, and known to millions.

App.8a-9a.

REASONS FOR GRANTING THE WRIT

The decisive legal rulings below conflict with the clear principles this Court has established to govern public employee cases, the scope of freedom of association, and equal protection issues. In addition, the court of appeals' many errors on important constitutional law questions have allowed an unjust state action to stand. According to the court below, the Constitution's guarantee of associational freedom does not prevent a government employer from firing a lesbian simply because she plans to enter into and privately celebrate, within her religion, a committed personal relationship with her partner.

The ruling below discarded critical aspects of the Pickering v. Board of Education, 391 U.S. 563 (1968), balancing test and thereby greatly diminished the constitutional rights of not just Shahar, but all public employees and contractors. First, the court erroneously held that it could avoid determining whether a Pickering plaintiff has constitutionally protected interests, and that it could fail to analyze and weigh the precise nature of the employee's claimed First Amendment activity. In fact, this approach precludes any real balancing, which is the essence of the Pickering test. Here it resulted in an underweighting of Shahar's protected interests and an erroneous end result. In giving too little attention and weight to Shahar's side of the balance, the court of appeals also failed to heed this Court's criteria for identifying protected intimate and expressive associations, as set forth in Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537 (1987), and Roberts v. United States Jaycees, 468 U.S. 609.

Second, the decision below improperly altered the focus of the Pickering test from what the employer knew at the time of the actual decision, to an analysis that incorporates all kinds of uninvestigated speculation and after-acquired evidence. It subverts the teaching of Waters v. Churchill, 511 U.S. 661 (plurality), and other decisions of this Court that fears of disruption can be weighed on the employer's side of the Pickering scale only if those fears are reasonable in light of the facts known at the time and the degree of investigation conducted.

Third, the en bane majority weighed illegitimate state interests in Bowers' favor, contrary to the constitutional requirement that public employee discharges, like all other government actions, be justified on "legitimate grounds." Rankin v. McPherson, 483 U.S. 378, 388 (1987). To condone Bowers' reliance on "perceived public hostility," App. 33a, and on discriminatory assumptions, the court of appeals erroneously viewed government-as-sovereign equal protection cases as irrelevant to the Pickering context. The majority's flawed effort to cabin equal protection principles should be reviewed and reversed by this Court, to make clear that belonging to an unpopular group, defined by "controversial" or "discomforting" personal characteristics, cannot trigger greater, selective limitations on public employees' First Amendment activities.

I. The Ruling Below, Contrary To This Court's Prior Decisions, Deletes A Crucial Step In The Pickering Test And Gives Too Little Protection To Associational Rights

A. By Failing To Consider The Employee's Specific Interest In Constitutionally Protected Activity, The Ruling Below Subverts The Central Tenet Of Pickering Balancing

As explained and applied by this Court, the Pickering standard requires a "particularized" inquiry to reach "the most appropriate possible balance of the competing interests." Connick v. Myers, 461 U.S. 138, 150 (1983). A careful, fact-intensive balance must be struck in each case between "the interests of the [employee], as a citizen" and "the interest of the State, as an employer[.]" Pickering, 391 U.S. at 568. Thus, "the State's burden in justifying a particular discharge varies depending upon the nature of the employee's expression." Connick, 461 U.S. at 150. The closer the employee's activity is to the "'highest rung of the hierarchy of First Amendment values,"' id. at 145 (citation omitted), the "stronger [the] showing" the employer will have to make to justify punishing that activity. See id. at 152; see also Waters, 511 U.S. at 674.

The court of appeals short-circuited the "particularized balancing" that is central to Pickering by simply assuming that Shahar's activity was protected and never assessing the facts and interests at stake from her perspective. App.17a, 28a. /9 In some types of cases an assumption of constitutional protection may be to a plaintiff's advantage, but in the Pickering context it impermissibly deprives the plaintiff of the reviewing court's gaining any palpable sense of the magnitude of what is at stake for the employee.

As Judge Tjoflat's opinion explains,

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.

App.43a. Although the majority below is correct that a person can know "'x' outweighs 'y' even without first determining exactly what either 'x' or 'y' weighs[,]" App.27a, both "x" and "y" must at least be "weighed" -- i.e., picked up and held -- to compare one to the other. In this case, the court failed to pick up and carefully consider the magnitude of the facts and interests as presented from Shahar's perspective, in light of the values that underlie the fundamental rights of intimate and expressive association. With that alteration to the Pickering test, it was impossible for the Eleventh Circuit to reach the case-specific result that this Court has required based on the "most appropriate possible balance of the competing interests." Connick, 461 U.S. at 150.

The en bane court of appeals took the balancing out of Pickering. Because the decision below so radically altered the Pickering test, a test all public employees and contractors depend on to safeguard their First Amendment rights, and that alteration led to the wrong result here, this Court should grant review and correct the Eleventh Circuit's error.

B. The Ruling Below Departs From Roberts And Rotary Club In Its Approach To Whether The Right Of Association Shields A Particular Relationship

Moreover, the court of appeals did not simply assume, without deciding, that Shahar had some First Amendment protection -- it expressed "considerable doubt" that the activity that triggered her dismissal was protected by the rights of intimate or expressive association. App. 11a As stated by the majority, those doubts rest on significant misunderstandings of the proper standards for determining whether associational activity enjoys First Amendment protection. The court's erroneous approach led to a devaluation of Shahar's core First Amendment activity and will similarly constrict freedom of association for others if left uncorrected.

1. Shahar's Deep, Personal, Exclusive Partnership Exemplifies The Characteristics Of A Centrally Protected Intimate Association

As this Court has explained, intimate associations are a necessary, "intrinsic" building block for the development of individual beliefs and identity, and are protected by the First Amendment "because of the role of such relationships in safeguarding" individual self-definition. Roberts, 468 U.S. at 617-20; Rotary Club, 481 U.S. at 545-47. Specific intimate association claims must be evaluated by "a careful assessment of . . . [the] relationship's objective characteristics[.]" Roberts, 468 U.S. at 620. As Rotary Club summarizes:

Of course, we have not held that constitutional protection is restricted to relationships among family members. We have emphasized 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 not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life." Roberts v. United States Jaycees, supra at 619-20 .... In determining whether a particular association is sufficiently personal or private to warrant constitutional protection, we consider factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship.

481 U.S. at 545-46. Shahar's choice to "enter into and maintain" a committed, exclusive, familial relationship with her partner by participating together in a religious and personal union falls at the most intimate, most protected end of the "spectrum . . . of personal attachments." See Roberts, 468 U.S. at 617, 620.

The court of appeals, however, misread the controlling case law and indicated that '`the culture and traditions of the Nation" are dispositive in determining whether the right of intimate association applies to a given relationship. App.11a & n.2; see also App.45a-46a (Tjoflat, J., concurring). This perspective confuses the historical inquiry that can play a part in the initial or general identification of a fundamental right, with the functional criteria that this Court has clearly articulated for assessing whether a present-day association is of the type or "kind of private or personal relationship" that the established First Amendment right of intimate association protects. Rotary Club, 481 U.S. at 547 (emphasis added).

Indeed, even when Roberts discusses the "critical role" these "kinds of personal bonds" have played in our history, it emphasizes that such relationships "foster diversity" and protect individual autonomy:

[T]he constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty.

468 U.S. at 618-19. Given that theoretical foundation, it would be completely at odds with First Amendment principles to say that the constitutional protection granted to specific relationships depends on their historical prevalence, popularity, or conformance with "mainstream" culture.

2. Shahar's Cultural, Social and Religious Activity Also Constitutes Core Expressive Association

Likewise, the court of appeals portrayed the right of expressive association inaccurately and in too cramped a fashion. The decision below makes that right co-extensive with and inseparable from Shahar's free exercise claim. App. 11a. Even while filling its opinion with examples of how Bowers could have interpreted Shahar's expression as conveying a meaning beyond its religious significance, the majority simultaneously discounted any expressive association protection because "[p]laintiff's religion requires a woman neither to 'marry' another female . . . nor to marry at all[.]" App.11a; see also App.30a n.27 (stressing that "the Attorney General did not revoke Shahar's offer because of her religious affiliation").

Such facts have no bearing on the expressive association claim. It is undisputed that Shahar was sincerely motivated by and sought to express religious convictions, and that she also sought to express other ideas believed in by the couple and those closest to them. As this Court has held, but the decision below ignored:

According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority. Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.

Roberts, 468 U.S. at 622 (citations omitted). In organizing and celebrating a "Jewish, lesbian-feminist, out-door wedding," App.29a, with invited guests, Shahar and her partner was communicating their commitment to one another, their commitment to Judaism, and the value that they, their culture, and their supportive family and friends place on this relationship. By continuing to live, without hiding, in that devoted lesbian relationship -- with reinforcement from the couple's religious and personal communities but completely apart from the civil institution of marriage -- Shahar communicates the relationship's significance in an ongoing way. R2-34-Shahar Dec. App.27a. Para. 5-9. Cf. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 570 (1995). This cultural, social and religious communication through associational activity lies at the heart of the right to expressive association.

Moreover, both Bowers and the court of appeals hinge their actions on Shahar having made, in their view, a political or public statement through her relationship. See, e.g., App.29a; supra at 5-6. That very reasoning should estop any argument that the right of expressive association does not protect Shahar's activity. While Shahar contends she expressed a "'private point[] of view,"' see New York State Club Ass 'n v. City of New York, 487 U.S. 1, 13 (1988)(citation omitted), and Bowers transforms that into a highly public and political statement, either version properly triggers the strong shield of the First Amendment. This Court should correct the mischaracterization below that Shahar's expression had to be mandated by her religion, embodying only religious and no other kinds of ideas, to fall within the broad right of expressive association.

II. The Court of Appeals Further Departed From Pickering And Its Progeny By Considering Uninvestigated Speculation And After-Acquired Evidence To Support The Employer's Asserted Interests, Instead Of Examining The Facts The Employer Knew At The Time Of The Decision

In another error that unjustly erodes public employees' constitutional rights and led to a wrong result here, the decision below inappropriately expands the information that can be brought to bear on the employer's side of the Pickering balance. The court of appeals' task was to determine whether the actual employment decision Bowers made on July 9, 1991, violated the First Amendment. However, instead of focusing on what Bowers knew at that time to determine the reasonableness and weight of his disruption fears, the majority relied upon: (a) uninvestigated, factually unfounded speculation about Shahar's planned activity and about how Shahar would conduct herself as a staff attorney; (b) information acquired only through discovery in this case; and (c) events that transpired long after Bowers' decision. App.23a-3 la.

As this Court stressed in a related context, "[t]he employer could not have been motivated by knowledge it did not have" at the time of a contested employment action. McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 360 (1995). Thus, when a court considers the interests of a government employer under the Pickering test, it must assess those interests from the perspective of the facts the employer knew at the time of the decision. See, e.g., Pickering, 391 U.S. at 570-72 (examining the evidence the Board had before it at the time of its final decision); see also Board of County Comm'rs v. Umbehr, 518 U.S. 116 S.Ct. 2342, 2352 (1996).

Of course, a court can consider a public employer's "reasonable predictions of [future] disruption" based on the facts known at the relevant time. Waters, 511 U.S. at 673; see also Connick, 461 U.S. at 154 (weighing concerns about possible disruption "which [the employer] reasonably believed"). Here, however, the court of appeals credited predictions with insufficient factual foundation. For example, the court accepted Bowers' speculation, arrived at before Shahar had begun work and before she even had participated in the ceremony, that Shahar "seemingly did not appreciate the importance of appearances and the need to avoid bringing 'controversy' to the Department" and that Shahar would "hold herself out as 'married"' in a way that would confuse the public as to her relationship's legal status and the Department's legal positions. App.26a, 29a Upon such speculation, Bowers built his fears of disruption.

The court below should have rejected those fears as unsupported and unreasonable, particularly because the only source that could accurately describe her intentions for the future -- Shahar herself -- had not been consulted. See Waters, 511 U.S. at 677 ("[i]t may be unreasonable . . . 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"). As the dissenters point out, if Bowers or one of his managers had talked with Shahar, he would have discovered that she very much cared about the Department's needs and had no intention (nor had she done so) of making detrimental public statements or deceiving the public as to the nature of her relationship; Shahar's firing need never have happened. App.63a-65a; R2-34-Shahar Dec. Para. 8, 11-16.

The appeals court also erroneously ruled that "Shahar's subsequent conduct," wholly unknown to her employer at the critical time, could be considered in evaluating the employer's justifications. App.29a n.21. In addition, the court improperly catalogued its own, very selective list of post hoc events in Georgia, and in Congress, to lend weight to Bowers' fears. App.24a n.l6, 35a n.24. This extraordinary expansion of the record (with after-acquired evidence of highly questionable relevance) simply underscores the lack of sufficient evidence to support Bowers' worries when he fired Shahar. It also highlights the court of appeals' excessive, almost absolute deference to Bowers because of his role as Attorney General. While it is clearly appropriate to consider Bowers' asserted interests in light of the Department's function within state government and Shahar's planned work there, the approach used below stretches too far to rubber-stamp the Attorney General's decision, no matter how shaky its foundation.

III. The Court Of Appeals Improperly Rejected The Relevance Of Equal Protection Principles In Pickering Cases And Weighed Illegitimate Government Interests In The Employer's Favor

Finally, the decision below departs in yet another significant way from the constitutional law teachings of this Court by allowing government, as employer, to serve illegitimate state interests. The court of appeals categorically rejected the relevance of government-as-sovereign equal protection cases to Pickering situations and otherwise erroneously limited equal protection principles. App.33a-38a. The Court should grant the writ to declare that neither group-based public animosity nor discriminatory judgments about a group member's conduct can constitute legitimate concerns on the employer's side of the Pickering test, and to correct the Pickering outcome here in favor of Shahar.

As Rankin v. McPherson made explicit, "[t]he State bears a burden of justifying [the employee's] discharge on legitimate grounds." 483 U.S. at 388 (emphasis added). Similarly, in Umbehr the Court summarized that "even termination because of protected [First Amendment activity] may be justified when legitimate countervailing government interests are sufficiently strong." 116 S.Ct. at 2347 (emphasis added).

Despite that legitimacy requirement, however, the court below held that Bowers can "justify his decision by reference to perceived public hostility" to "his having a Staff Attorney who is part of a same-sex 'marriage."' App.33a. That concern alone, separate and apart from any "confusion" in the minds of the public about Department legal positions, properly weighed in Bowers' favor according to the court of appeals. App.33a-35a.

The court also ruled that Bowers' own and the public's perceived assumption about the sexual behavior of gay people ("if it's homosexual, it would have to be sodomy[,]" Bowers 80-81), taken together with the Georgia sodomy statute and Bowers v. Hardwick, can properly disqualify Shahar from employment because of her lesbian relationship. App.23a-25a, 31a-37a. The court considered unimportant (a) the explicitly status- and stereotype-based nature of that erroneous assumption about gay people's behavior; (b) the sexual-orientation-neutral coverage of Georgia's consensual sodomy offense; and (c) the more recent involvement of Bowers' office in an equally visible and publicly debated (at least within Georgia) heterosexual sodomy case, R2-35-Mem. at 9, during which Bowers emphasized the irrelevance of his attorneys' private sexual behavior to their jobs, supra at 6-7. /10

Similarly, the court gave weight to Bowers' perception of Shahar as having a "special personal interest" and thus creating potential difficulties for the Department in all kinds of "controversial matters" tied to homosexuality. App.24a, 31a, 37a. The court ignored the lack of factual ties between Shahar and issues such as "homosexual parental rights," App.24a, instead accepting a general, sexual-orientation based "conflict of interest" that applied to Shahar as a lesbian but not to heterosexual attorneys, who were not perceived as disruptive to the Department's work on cases involving "heterosexual issues" or parties, see, e.g., Bowers 185.

As Judge Birch concluded, all of "Bowers's 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." App.80a. But under clear equal protection jurisprudence, "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 [state] interest[.]" App.80a; see also Romer v. Evans, 517 U.S.___,___, 116 S.Ct. 1620, 1628-29 (1996).

Indeed, Bowers' reasoning is strikingly similar to the city council's reasoning that this Court rejected in City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448-50 (1985). There, the city "was concerned with the negative attitude of the majority of property owners" toward the mentally retarded living in a group home near them; the Court stressed, however, that "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable . . ., are not permissible bases" for discriminatory government action. Id. at 448. The city also offered worries about floods, legal responsibility, overcrowding, and fire hazards, but had no comparable concerns about other housing situations, not involving the mentally retarded, that would logically pose the same issues. As this Court held, "[t]he short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded." Id. at 450. Here, Bowers' decision rests on irrational prejudice toward gay people and his asserted concerns should be given no legitimacy or weight under Pickering. /11

Contrary to the court of appeals' false distinction between sovereign and employer cases, illegitimate bias simply cannot dictate government action, under any circumstances.

The Constitution cannot control such prejudices but neither can it tolerate them. 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."

Palmore v. Sidoti, 466 U.S. 429, 433 (1984)(ellipsis added to internal quote).

The court of appeals also erred in attempting to distinguish between "people's condition" and "a person's conduct." App.36a. This case involves status-based reaction to and exaggeration of conduct. Palmore teaches that adverse judgments about conduct -- such as a relationship -- that are drawn only when the conduct involves a member of an unpopular or despised group are just as illegitimate as other forms of prejudice. 466 U.S. at 433 (involving interracial relationship); see also Romer, 116 U.S. at 1623, 1628 (striking down, as "born of animosity," an amendment that prohibited any law or policy "whereby homosexual, lesbian or bisexual orientation, conduct, practices, or relationships shall constitute or otherwise be the basis of . . . [a] claim of discrimination")(emphasis added). Status-based negative views about conduct impose an illegitimate double standard that cannot properly be invoked by government employers.

The court of appeals' refusal to consider these well-settled principles in assessing the legitimacy of an employer's concerns under Pickering is a dangerous error. Now, for example, a disabled attorney could be fired for joining a local church's support group for disabled people, with the rationale that such activity indicates too strong a "special interest" in disability issues and triggers a conflict of interest for a state agency's handling of discrimination complaints. A public employee who, with his companion, openly participates in a workshop for gay writers after work can be uniquely linked to a consensual sodomy statute, despite its application to all couples, and dismissed because of the appearance of "illegal conduct."

Even if such discriminatory reasons are not the only reasons advanced by the employer, these illegitimate considerations have no place in the Pickering analysis -- and, in addition to being set aside, should trigger a more skeptical assessment of any other asserted bases for action against the employee's speech or association. /12 This Court should grant review to address the artificial, improper barrier erected below between First Amendment and equal protection dictates.

CONCLUSION

For all the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

Steven R Shapiro
Matthew A. Coles
American Civil Liberties
Union Foundation
125 Broad Street
New York, N.Y. 10004
(212) 549-2500

Debra Schwartz
Stanford, Fagan & Giolito
1401 Peachtree Street
Atlanta, Georgia 30309
(404) 897-1000

Ruth E. Harlow
(Counsel of Record)
Patricia M. Logue
Beatrice Dohrn
Lambda Legal Defense and Education Fund
120 Wall Street
New York, N.Y. 10005
(212) 809-8585

Dated: October 30, 1997

[Endnotes]

/1 Record citations are to the record volume, document number, and subpart and/or page number; deposition transcripts are cited by deponent's name and page number.

/2 This Hebrew word translates into English as "marriage" or "sanctification." Kleinbaum 53; Friedlander 50.

/3 In July 1991, petitioner's last name was legally changed from Brown to Shahar; some of the record evidence in this case uses her prior surname. Greenfield also changed her last name to Shahar, which means "seeking God" in Biblical Hebrew. Shahar 23.

/4 Contrary to the opinion's implications, this case is not about any "right of same-sex marriage" that would open civil marriage to gay couples, cf.: App. I la n.2, or about any other claim that government must affirmatively "further" Shahar's association, App.12a. Instead, the case seeks to protect individual liberty by preventing the government from punishing (e.g, by revoking a state job) or otherwise interfering with individual associational freedom that takes place in a citizen's personal and religious life.

/5 For example, the opinion cites that the two women "openly" "sought and received the married rate on their insurance" and "together, own the house in which they cohabit," facts unknown to Bowers in July 1991, as evidence that Shahar "hold[s] herself out" as married in a way that might interfere with the Department's work. App.29a. The lower insurance rate, however, was secured in a private conversation between Shahar and her insurance agent, when she explained to him the religious, nonlegal nature of her ceremony and asked whether the lower, "no unmarried females" rate would be possible. Shahar 21-22, 71. As to the home ownership, the opinion does not indicate how that fact could possibly represent "holding herself out" as married.

/6 The opinion, for example, takes the position that "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 has been borne out in fact," citing cases from 1993-96. App.24a n.l6. The opinion provides no explanation or evidence, however, to show that Shahar had a "special personal interest" that might relate to any of the cases. The only possible connection between Shahar and those matters is a shared sexual orientation with some of the interested parties.

/7 App.70a ("To the extent that 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 held in another state. It was neither announced in the newspapers, nor otherwise reported publicly. 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 ").

/8 Judge Birch also concluded, "The distinction that the majority draws between Shahar's status as a homosexual and her conduct in entering a homosexual marriage . . . 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." App.74a n.2 (emphasis in original).

/9 To the extent the majority opinion even mentions the facts deemed relevant by Shahar, it examines those facts only from the perspective of Bowers' asserted interests as the employer. See App.28a-30a. The court never makes explicit why Shahar might value -- and the First Amendment might protect╬her freedom to select her life mate, celebrate that relationship in a religious and personal way, and lead her private, offduty life as she sees fit.

/10 On rehearing, the court also found unimportant Bowers' own apparent violation of one or more of the state's consensual sex offenses that apply to heterosexuals (adultery, fornication and/or sodomy). See supra at 14. His adulterous relationship, moreover, represented a more plausible statement against the marriage laws than Shahar's religious and personal relationship, but Shahar -- because of the "controversial" nature of her sexual orientation -- was the one punished.

/11 The illegitimacy and irrationality of Bowers' justifications, which explicitly hinge on the lesbian nature of Shahar's relationship, also establish a discrete equal protection violation. The court of appeals' errors with regard to Bowers' discriminatory justifications under Pickering distorted the equal protection result as well. See App.74a n.2 (Birch, J., concurring).

/12 Thus, if this Court were to disagree with Shahar and find that only some, not all, of Bowers' concerns are illegitimate, she would still be entitled to a careful re-weighing of the competing legitimate interests at stake in this case -- a re-weighing that is likewise required by all of the other errors in the court of appeals' approach to the Pickering test.