ATLANTA -- In an important victory for lesbian and gay civil rights, a federal appeals court in Georgia recently ruled a lesbian's relationship with her partner is safeguarded by the Constitution and entitled to the highest level of judicial protection.
The ruling came in a case brought by Robin Shahar, who sued the Attorney General of Georgia, Michael Bowers, when he terminated her employment upon learning of Shahar's plans to enter into a Jewish marriage with another women. The American Civil Liberties Union, which filed and litigated the case, applauded the decision.
"This careful, respectful ruling affirms the constitutional freedom of all government workers, including lesbian and gay employees, from being fired because of their intimate and personal relationships," said Ruth Harlow, associate director of the ACLU's Lesbian and Gay Rights Project, who argued the appeal. "It sets the highest possible legal hurdle for the government to clear if it seeks to fire someone on that basis."
A three-judge panel of the United States Court of Appeals for the Eleventh Circuit unanimously agreed that Shahar's relationship with her partner is protected under the "fundamental right of intimate association," a legal term describing an individual's right to enter into and maintain important personal relationships free of government intervention.
"Though the religious-based marriage in which Shahar participated was not marriage in a civil, legal sense it was intimate and highly personal in the sense of affection, commitment, and permanency," wrote Judge John C. Godbold.
A majority of judges then remanded the case to the district court for application of "strict scrutiny" to determine whether the Attorney General had a "narrowly tailored compelling governmental interest" that necessitated Shahar's firing. Although today's ruling did not reinstate Shahar to her position with the state, it clears the way for a likely return, given the difficult task of demonstrating a "compelling interest" before the lower court.
Bowers chance of success in the lower court are highly unlikely, according to legal observers. One of the appellate court judges even concluded that his justifications could not pass a more lenient, "balancing standard."
"I conclude that Shahar's constitutional interest in pursuing her intimate association outweighs any threat in the efficient operation of the Georgia Department Law," wrote Judge Phyllis Kravitch in a separate opinion.
The ACLU filed the suit in October 1991, just after Shahar was to start work as an entry-level staff attorney for the Georgia Department of Law, which Bowers heads. In the early summer of 1991, Bowers rescinded the job after learning that Shahar and her lesbian partner were about to participate in a wedding ceremony.
In a letter explaining his decision, Bowers wrote, "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."
Shahar, who graduated 6th in her class at Emory Law School, had already worked for the Attorney General the summer following her second year of law school, and was offered the permanent position because of her good performance during that clerkship.
"I worked very hard to get that job at the state Attorney General's office," said Shahar. "I didn't deserve to get fired just because I underwent a commitment ceremony before my family and friends. I'm very pleased the court is finally placing the burden on the Attorney General to prove that he had some overriding need to take away my job.
"Perhaps most importantly, I'm thrilled with the respectful tone in which the judges viewed my loving relationship," added Shahar, who still lives in Atlanta with her partner of ten years, and currently works for the City of Atlanta Department of Law, where she was recently promoted.
"Each of the three appellate judges recognized the central importance of this lesbian relationship to the women involved," stressed the ACLU's Harlow. "The decision signals a new measure of respect for lesbian and gay couples."
In addition to Harlow, Shahar was represented on the appeal by William B. Rubenstein, former Director of the ACLU Lesbian and Gay Rights Project, and by Debra Schwartz, a partner at the Atlanta law firm of Stanford, Fagin, and Giolito.