Family Law Keyed to Weisberg

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Shahar v. Bowers

Citation. Shahar v. Bowers, 114 F.3d 1097, 1997 U.S. App. LEXIS 13069, 70 Empl. Prac. Dec. (CCH) P44,739, 12 I.E.R. Cas. (BNA) 1582, 11 Fla. L. Weekly Fed. C 35 (11th Cir. Ga. May 30, 1997)

Brief Fact Summary. Appellant brought suit against the Attorney General after a job offer was withdrawn when the Attorney General discovered that appellant intended to enter into a same-sex marriage. Same sex marriages are not recognized under Georgia law.

Synopsis of Rule of Law. The Court found that the appropriate test for evaluating the constitutional implications of a government employer’s decision to withdraw a job offer based on the potential employee’s “marriage” is a balancing test rather than strict scrutiny.

Facts. Appellant Robin Shahar was offered a position of Staff Attorney with the Attorney General of the State of Georgia after her pending graduation from law school. She began making plans for a “wedding” for her and her same-sex partner, described as a Jewish, lesbian feminist, out-door wedding. On a required application for the Staff Attorney position, appellant indicated that she was engaged, and referenced Francine Greenfield as her future spouse’s name. While working on her wedding invitations with her partner at a restaurant, appellant met a staff attorney for the Attorney General’s office and mentioned the wedding preparations to them. This staff attorney mentioned to an Assistant Attorney General that appellant was marrying another woman. Senior aids to the Attorney General became concerned with potential problems in the office resulting from employment of appellant. The Attorney General, upon the advice of his senior lawyers, decided to withdraw appellant’s job offer.
In explanation the Attorney General stated that inaction would constitute tacit approval of the purported marriage and jeopardize the proper functioning of the office. Appellant instituted suit seeking damages, injunctive relief, and reinstatement, claiming the revocation of the employment offer violated the rights to free exercise and association, equal protection, and substantive due process. The district court granted the Attorney General’s motion for summary judgment.

Issue. Did the Attorney General of the State of Georgia violate appellant’s federal constitutional rights by revoking an employment offer because of her purported marriage to another woman?

Held. The appellant’s federal rights were not violated because the State of Georgia’s interest as an employer in promoting the efficiency of the Law Department’s important public service outweighs appellant’s personal associational interests.
The government’s role as employer is different from its role as sovereign. Appellant argues that withdrawal of her job offer must be reviewed under strict scrutiny. This Court concludes that the appropriate test for evaluating the constitutional implications of a government employer’s decision to withdraw a job offer based on the potential employee’s “marriage” is a balancing test. The determination is whether appellant’s interests outweigh the disruption and other harm the Attorney General believes her employment could cause.

In balancing the interests, the Court accords appellant’s claimed associational rights substantial weight. However, even the weight due the associational rights of a state-authorized marriage can be overcome by a government employer’s interest in maintaining the effective functioning of his office.

Appellant claims that she took no action to transform her intimate association into a public or political statement, and that she affirmatively disavowed any rights to benefits from the Department based on her marriage. However, this disavowal merely acknowledges that Georgia law does not recognize homosexual marriage. Any claim that appellant does not hold herself out as married contradicts the undisputed facts.

The Attorney General has a legitimate concern that his office may be involved in litigation in which appellants special personal interest might appear to be in conflict with the State’s position. Appellant claims that she would have handled mostly death penalty appeals, but a particularized showing of interference with the provision of public services is not required. The Court has held that the significance of public perception is a consideration when law enforcement is involved.

The present case is about the powers of government as an employer, which are far broader than government’s powers as a sovereign. This case is about a person’s conduct, and the decision involved is not the same kind of decision as an across-the-board denial of legal protection because of their condition.

Discussion. The Court stressed the fact that the powers of the government as an employer are far broader, particularly in a case such as this where the employment involves access to the employer’s confidence, acting as the employer’s spokesperson, and helping to make policy.