Tuesday, April 6, 2010
Senior Judge Phyllis Kravitch (pictured left) authored a unanimous opinion for a panel of the Eleventh Circuit Court of Appeals (h/t How Appealing) affirming summary judgment against a claim of a firefighter who was demoted because of his extramarital affair with another employee in a Fire Department in which such liaisons seemed rather common.
What makes the relatively brief opinion in Starling v. Board County Commissioners of Palm Beach County interesting, however, is that the Eleventh Circuit assumed "arguendo" that there was a intimate right of association under the First Amendment. The court ultimately found that this right was outweighed in the public employment context, applying the balancing test of Pickering v. Board of Education. For analytic precedent, Starling cites the notorious Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1 1997) (en banc) in which the court upheld the withdrawal of an employment offer to Robin Joy Shahar from the Attorney General of Georgia, Michael Bowers [of Bowers v. Hardwick] because Shahar married her female partner. Yet as Judge Tjoflat's concurring opinion in Shahar made clear, an intimate association claim partakes of both substantive due process and First Amendment doctrine.
Thus, for practitioners, students, and theorists thinking about fundamental rights to sexuality under the due process clause, Starling may provide further support for first amendment grounding.