A lawyer who was fired from the Georgia Attorney General's office after she held a private religious wedding with her lesbian partner asked a federal appeals court June 20 to rehear her case, saying that recent revelations of adultery by her former boss undermine his basis for the firing and the court's decision upholding the dismissal.
The lawyer, Robin Shahar, argues that admissions made two weeks ago by former Attorney General Michael Bowers that he had a long-term heterosexual affair without compromising his work strongly underscores that a double standard was applied to her lesbian relationship. She further argues that it warrants a reconsideration of her case before the 11th Circuit U.S. Court of Appeals, that decided on May 30 that her firing was permitted because of Bowers' stated concerns with office integrity and her judgement.
The American Civil Liberties Union, which brought the case in 1991 on Shahar's behalf, charges that those admissions, coupled with the court's misreading of Supreme Court precedents, seriously jeopardizes the underpinnings of the court's ruling. The ACLU has been joined this month by Lambda Legal Defense and Education Fund in representing Shahar.
"The court had adopted Bowers' contention that the firing was necessary to preserve the public trust in the Attorney General's office, even though Shahar had broken no law by holding a private ceremony to honor her relationship," said Ruth Harlow, the lead attorney on the case, who is now with Lambda. "Bowers' recent admission makes starkly clear that he used a double, discriminatory and unconstitutional standard to fire Shahar."
"In light of Bowers' admission, the basis for the court's decision to uphold Shahar's dismissal is on very shaky legal ground," said Michael Adams, staff attorney with the ACLU's Lesbian and Gay Rights Project. "When it came to his own heterosexual affair, Bowers understood that there's a difference between an employee's professional and personal life. The Court should apply the same standard to Shahar's job."
Shahar's attorneys are asking the appeals court to either vacate the May 30 ruling and rehear the case, or to send the case back to the district court for initial consideration of the new facts. A majority of the 12 judges sitting on the full appellate court is needed to grant the request.
In July 1991, Bowers dismissed Shahar from her staff attorney position with the Georgia Department of Law when he learned that she was planning a Jewish wedding with her lesbian partner. Shahar had clerked for the department the year before, and was offered the full-time job after graduating sixth in her class at Emory Law School.
The firing took the form of an abrupt letter, signed by Bowers, that said: "This action has become necessary in light of information which has only recently come to my attention of 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."
A three-judge panel of the 11th Circuit ruled in December 1995 that the firing infringed on her constitutional rights because Shahar's relationship is safeguarded by a "fundamental right of intimate association." The panel sent the case back to trial.
But the ruling was set aside by the full appellate circuit, which rejected Shahar's constitutional claims, and agreed with Bowers last month that "we must defer to Georgia Attorney General's judgement about what Georgians might perceive unless his judgement is definitely outside the broad range of reasonable views."
Six days after that decision, Bowers announced in more than 15 interviews with reporters that he carried on an adulterous affair for more than a decade with a woman who worked for him, and acknowledged that his decision to fire Shahar was "hypocritical morally." Bowers resigned as Attorney General to run in the 1998 ticket for Governor.
Because Bowers' admissions starkly expose the discriminatory double standard in Shahar's firing, her attorneys argue, the appeals court must consider the case in light of the Supreme Court 1996 decision in Romer v. Evans, as well as reexamine Shahar's other constitutional claims.
The Romer precedent establishes that discrimination against lesbians and gay men cannot be based on bias or discomfort alone, but must serve some legitimate governmental interest. Attorneys for Shahar do not believe that this firing meets that test, and that Shahar should be given her job back.