specially concurring:
I join the court’s judgment affirming the district court’s rejection of Robin Shahar’s claim that Attorney General Michael Bowers withdrew his offer of employment because she is a homosexual and thus denied her the equal protection of the laws in violation of the Fourteenth Amendment. I do so because, as the court concludes, the record does not permit the inference that the Attorney General’s decision was based on her homosexual status.
I also join the court’s judgment with respect to Shahar’s remaining claims, all brought under the First and Fourteenth Amendments — that the Attorney General withdrew the offer because of Shahar’s intimate association with her lesbian partner and because Shahar participated in a religious wedding ceremony with her partner.1 This latter claim is couched as two claims: a claim that Shahar’s participation in the ceremony constituted an exercise of religion on her part, and a claim that such exercise was a purpose of her and her partner’s expressive association. The court rejects all of these claims by assuming the existence of the alleged constitutional right and then, under Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), balancing the assumed right against the Attorney General’s governmental interest in the efficient operation of the Department of Law.2
The court engages in Pickering balancing in an effort to avoid the question whether the Constitution protects the First and Fourteenth Amendment rights Shahar seeks to enforce. I agree that constitutional questions should be answered only when necessary to the resolution of the case. See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445-46, 108 S.Ct. 1319, 1323-24, 99 L.Ed.2d 534 (1988); Ashwander v. TVA, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandéis, J., concurring). In this ease, however, I believe the court must reach the constitutional ques*1112tion in order to determine under Pickering whether the Attorney General’s action was lawful. As I explain below, 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. The court does not do this — it does not tell us, with respect to each of Shahar’s remaining claims, where the assumed right ranks in the constitutional hierarchy.3
Pickering balancing, in the public employment context, involves the weighing of the employee’s interest in the exercise of a constitutional right against the employer’s interest in maintaining an efficient workplace.4 *1113The employee has exercised a constitutional right, and the employer, concluding that such exercise seriously has impaired, or will impair, the ability of the workplace to function properly, makes an employment decision adverse to the employee. In order to decide whether the employer’s decision was justified, the court places the interest of the employer on one side of a “scale” and the interest of the employee on the other side. If the employer’s interest outweighs the employee’s, the employer prevails. Pickering balancing does not apply where the employee’s constitutionally protected conduct did not motivate the employer’s decision. In such a case, balancing is not necessary; the employer prevails because the employee has not established the element of causation. See, e.g., Board of County Comm’rs v. Umbehr, — U.S. -, -, 116 S.Ct. 2342, 2347, 135 L.Ed.2d 843 (1996); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir.1994).
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. In the ease at hand, the court, with respect to each of Shahar’s claims, assumes Shahar’s exercise of a constitutional right without describing the right and telling us the weight it has assigned to it.5 It then places on the other side of the scale the Attorney General’s interest in operating an efficient Department of Law that can command the public’s respect, and concludes that such interest outweighs what the court has assumed and placed on Shahar’s side of the scale.
I submit that if one assumes that the First Amendment protects the homosexual relationship between Shahar and her partner as an intimate association, summary judgment on the intimate association claim was inappropriate on the record before us. Thus, I reach the question whether that relationship has First Amendment protection. I conclude that it does not. As for Shahar’s claims that the Attorney General based his employment decision on Shahar’s participation in the religious wedding ceremony and thus infringed her rights of free exercise of religion and expressive association, I conclude that the claims fail for want of proof that the religious nature of that ceremony motivated, in whole or in part, the Attorney General’s decision. I turn first to Shahar’s intimate association claim.
I.
A.
Shahar argues that the Attorney General’s withdrawal of the offer of employment violated her right to intimate association with her partner. The Supreme Court articulated the right to intimate association in Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), recognizing that its prior decisions “afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” Id. at 618, 104 S.Ct. at 3250.6 The Court explained that relation*1114ships “that attend the creation and sustenance of a family — marriage, childbirth, the raising and education of children, and cohabitation with one’s relatives” are the type of relationships afforded protection as intimate associations. Id. at 619, 104 S.Ct. at 3250 (citations omitted).
The Court has since explained that “we have not held that constitutional protection is restricted to relationships among family members.” Rotary Int’l, 481 U.S. at 545,107 S.Ct. at 1946. On the other hand, the Court has also stated that “we do not think the Constitution recognizes a generalized right of ‘social association.’ ” City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989).
The Court in Roberts provided some guidance in determining which relationships are entitled to protection as intimate associations. Roberts provides a list of “factors that may be relevant [to determining whether a given relationship constitutes an intimate association], including] size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent.” 468 U.S. at 620, 104 S.Ct. at 3251. While these factors may be relevant, I believe that courts must also determine whether the asserted relationship has “played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.” Id. at 618-19,104 S.Ct. at 3250.
In its most recent case to address the issue of intimate association, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), the Court evaluated a claim that a municipal ordinance that required a license for any motel renting rooms for fewer than ten hours violated a hotel patron’s intimate association rights. There, the Court held that
we do not believe that limiting motel room rentals to 10 hours will have any discernible effect on the sorts of traditional personal bonds to which we referred in Roberts. Any “personal bonds” that are formed from the use of a motel room for fewer than 10 hours are not those that have “played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.”
Id. at 237, 110 S.Ct. at 599 (quoting Roberts, 468 U.S. at 618-19, 104 S.Ct. at 3249-50). This passage illustrates the Court’s view that “the culture and traditions of the Nation” are critical to the determination of whether a particular relationship is entitled to protection as an intimate association.
The cases Roberts cites as examples of relationships that are protected as intimate associations further indicate the crucial importance of “the culture and traditions of the Nation.” In Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), the Court traced the long line of cases extending from the nineteenth century to the present recognizing the fundamental character of marriage. Citing Maynard v. Hill, 125 U.S. 190, 205, 211, 8 S.Ct. 723, 726, 729, 31 L.Ed. 654 (1888), the Zablocki Court noted that marriage is “the most important relation in life and [is] the foundation of the family and society, without which there would be neither civilization nor progress.” Zablocki, 434 U.S. at 384, 98 S.Ct. at 680 (quotation marks and citations omitted).
The Court noted in Smith v. Organization of Foster Families for Equality and Reform, that “the liberty interest in family privacy has its source ... in intrinsic human rights, as they have been understood in this Nation’s history and traditions.” 431 U.S. 816, 845, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14 (1977) (quota*1115tion marks omitted). In Carey v. Population Servs. Int'l, the Court explained that “[t]he decision whether or not to beget or bear a child is at the very heart of th[e] cluster of constitutionally protected choices” about family, childrearing, and conception. 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977). Finally, in Moore v. City of East Cleveland, a plurality of the Court observed that “[o]ur decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.” 431 U.S. 494, 503-04, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977) (footnotes omitted).
These cases, coupled with the Court’s holding in FW/PBS, lead to the conclusion that in order to find that Shahar’s relationship is protected as an intimate association, we must find that homosexual relationships have “played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.”
I conclude that this simply is not the ease. Shahar has pointed to nothing to suggest that homosexual relationships have played a critical role in our history and tradition. On the contrary, the Supreme Court’s decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), suggests that homosexual relationships have not played such a role. In that case the Court concluded that there is no fundamental right to engage in homosexual sodomy. Id. at 190— 96, 106 S.Ct. at 2843-47. In arriving at that conclusion, the Court stated that “[n]o connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.” Id. at 191, 106 S.Ct. at 2844. The Court concluded that “to claim that a right to engage in [homosexual sodomy] is deeply rooted in this Nation’s history and tradition or implicit in the concept of ordered liberty is, at best, facetious.” Id. at 194,106 S.Ct. at 2486 (quotation marks omitted).7
Homosexual relationships have not played the same role as marital or familial relationships in the history and traditions of the Nation. Shahar’s relationship with her partner is not a “fundamental element of personal liberty” protected as an intimate association. As a result, Shahar fails to state a claim that her right to intimate association has been violated. Summary judgment on this claim was therefore appropriate.
B.
The court purports to avoid this constitutional decision by assuming that Shahar’s relationship constitutes a protected intimate association and then, by engaging in Pickering balancing, concluding that the Attorney General’s interests outweigh Shahar’s interest in her intimate association. As I stated earlier, a court cannot engage in Pickering balancing without identifying the constitutional source of the employee’s right and assigning the right a weight or constitutional value. The court points to the First Amendment as the source of the right of intimate association. It does not, however, indicate the weight it assigns to Shahar’s assumed intimate association. The court simply sidesteps this issue. Instead, after assuming for the sake of argument that Shahar has a right of intimate association, the court, observing that the right is “not absolute,” ante at [1102], concludes that the Attorney General’s interest outweighed Shahar’s and that his “act — as an employer — was still lawful.” Ante at [1100].
I suggest that if the court is going to assume that Shahar’s relationship with her partner is a protected intimate relationship, the court ought to assume that it is “a fundamental element of personal liberty,” Roberts, 468 U.S. at 618, 104 S.Ct. at 3249, protected because it is “deeply rooted in this Nation’s *1116history and tradition.”8 Moore, 431 U.S. at 503, 97 S.Ct. at 1938; see supra n. 3. A reasonable trier of fact could find from the record in this ease that the Attorney General’s decision was motivated not by the fact that Shahar is a homosexual, but because she and her partner were maintaining an open homosexual relationship.9 Thus, unless the Attorney General would prevail as a matter of law in a Pickering balance, summary judgment was inappropriate. I believe that it is likely that Shahar would prevail in such a balance.
If Shahar’s relationship is entitled to the same level of protection as is a heterosexual marriage, I doubt whether the public perception of that relationship, or the State of Georgia’s public policy against according such relationships the same protections and privileges as heterosexual marriage, would be placed on the government’s side of the scale. Even if those factors were weighed in the balance, it is difficult to imagine that they would outweigh Shahar’s interest in her relationship.
A hypothetical will illustrate the point. Suppose that Shahar had married a man of another race rather than “marrying” a woman. Such a relationship would clearly be protected as an intimate association. See Roberts, 468 U.S. at 620, 104 S.Ct. at 3251 (citing Loving v. Com. of Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967)). I believe that 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. In short, if the court accords Shahar’s relationship the same constitutional value that the Supreme Court has assigned to heterosexual marriage, the Attorney General would face a heavy burden in prevailing in a Pickering balance.10
The court could have assumed that Shahar’s intimate association right has less weight than that accorded intimate associations rooted in the Nation’s history and tradition.11 From my reading of its opinion, how*1117ever, it did not do so. Even if we were to accord Shahar’s right a lesser constitutional value, the Pickering balancing problem would persist: precisely what weight would we place on Shahar’s side of the scale? In sum, I fail to see how the court can avoid the constitutional question whether Shahar’s relationship with her partner is protected under the First and Fourteenth Amendments. For this reason, I cannot ascribe to the court’s analysis of her intimate association claim.
II.
Before reaching the issue of whether Pickering applies to Shahar’s free exercise of religion claim, the court must determine whether the record permits the inference that Shahar’s participation in the “wedding” ceremony constituted an exercise of her sincere religious beliefs. See, e.g., Frazee v. Illinois Dep’t. of Employment Sec., 489 U.S. 829, 834, 109 S.Ct. 1514, 1517-18, 103 L.Ed.2d 914 (1989) (holding that First Amendment protection extends not merely to a claimant “responding to the commands of a particular religious organization” but also to a claimant exercising a “sincerely held religious belief.”). In addition, the court must determine that the record permits the inference that Shahar’s religious exercise motivated the Attorney General’s decision.12 See Mt. Healthy, 429 U.S. at 283-84, 97 S.Ct. at 574.
Similarly, Shahar must establish that the Attorney General was motivated by the religious nature of her “wedding” ceremony in *1118order to reach the question of whether Pickering applies to Shahar’s expressive association claim. In Roberts, the Supreme Court recognized that it has “long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others” for purposes of engaging in those First Amendment activities. 468 U.S. at 622,104 S.Ct. at 3252. Here, the alleged First Amendment activity for which Shahar and her partner associated was the free exercise of religion: their participation in a religious “wedding” ceremony.
While the record does establish that Shahar was engaged in the exercise of her religion, there is no evidence that the religious nature of the ceremony motivated the Attorney General’s decision. The record establishes that homosexual “marriages” are recognized by a part of the Reconstructionist movement of the Jewish faith. In addition, the record shows that Shahar and her partner are life-long Jews and that they have been active in a Jewish congregation which ministers to homosexuals and recognizes homosexual “marriages.” Shahar’s wedding ceremony was performed by a rabbi and was otherwise quite similar to a traditional Jewish wedding between a man and a woman. These facts establish that Shahar’s wedding ceremony was an exercise of her religion: she participated in a “wedding” ceremony that was in accord with her sincere religious beliefs.
The record, however, is devoid of evidence which would show that the Attorney General was motivated by the religious nature of Shahar’s marriage ceremony. The record shows that the Attorney General was aware that Shahar planned to engage in a “big or church” wedding. In addition, the Attorney General discussed with one of his staff members whether such a marriage would be recognized by the Jewish faith. This establishes only that the Attorney General was aware of the religious nature of the ceremony; there is no evidence that the religious nature of the ceremony prompted him to withdraw Shahar’s offer of employment. As a result, both Shahar’s free exercise claim and her expressive association claim fail for want of proof that religion bore a causal relationship to the Attorney General’s decision.
In conclusion, I concur in the court’s judgment for the reasons stated above.
. The record in this case supports an inference that the Attorney General withdrew Shahar’s offer of employment because he thought Shahar had “set him up;" once ensconced in the Department of Law office, she would use her position to advance a homosexual-rights agenda among her co-employees. Had the Attorney General’s decision been motivated by this concern, Shahar may have had a free speech claim. See, e.g., Connick v. Myers, 461 U.S. 138, 150-54, 103 S.Ct. 1684, 1692-93, 75 L.Ed.2d 708 (1983) (applying Pickering to a district attorney’s decision to discharge a deputy because her speech on a matter of public concern disrupted the district attorney’s office). Shahar, however, did not present a free speech claim to the district court; consequently, such a claim is not involved in this case.
. Shahar's complaint sought (for each of her claims) injunctive relief (an order requiring the Attorney General to reinstate the offer of employment) and money damages. In his answer, the Attorney General pled qualified immunily as an affirmative defense to Shahar’s prayers for money damages. The district court did not pass on this defense because it concluded that the record disclosed no constitutional violation. In this appeal, the Attorney General does not ask us to affirm the district court’s summary judgment with respect to the damages aspect of the case on the alternative ground that he is entitled to qualified immunity.
. The court contends that this is unnecessary because
Pickering balancing is never a precise mathematical process: it is a method of analysis by which a court compares the relative values of the things before it. 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 a Pickering balance.
Ante at [1106].
The court cites two cases for the proposition that other courts have balanced under Pickering a government employer's interest against an employee's assumed constitutional right. The first case, Kemp v. State Bd. of Agric., 803 P.2d 498 (Colo.1990), cert. denied 501 U.S. 1205, 111 S.Ct. 2798, 115 L.Ed.2d 972 (1991), is, in my view, inapposite. In Kemp, the plaintiff, an employee of Colorado State University who claimed that sex and race discrimination resulted in "a salary increase she felt was too low,” id. at 500, invoked the university’s formal grievance procedure and chose to have her grievance heard in a closed rather than in an open proceeding. While the proceeding was underway, she wrote one of her U.S. Senators complaining about irregularities in the proceeding. When the office in charge of investigating her allegations learned that she had brought an outside party into the picture, he terminated the proceeding. The university president affirmed the officer's decision. The employee then sued the university and others, seeking unspecified injunctive relief and money damages. Kemp v. State Bd. of Agric., 790 P.2d 870 (Colo.Ct.App.1989).
The question before the court was whether the university's closed hearing procedure, which “clearly indicate[d] that outside forces may not be invited into the proceedings until a decision has been rendered,” Kemp, 803 P.2d at 504—505, violated the employee’s First Amendment rights of free speech and petition of grievances. The Colorado Supreme Cotut chose to decide the question by engaging in Pickering balancing instead of determining whether the employee had waived her rights of free speech and of petition by voluntarily choosing to have her grievance decided in a closed proceeding. Applying Pickering to the employee's claims, the court had no problem determining that her speech was not a matter of public concern under Connick and that Pickering therefore did not protect the employee. The court then faced the novel question of whether Pickering applied to First Amendment petition claims. The court assumed that the employee’s right to petition was implicated when she contacted her senator and concluded that she had “no stronger interest [under the Petition Clause] than [she] had under the Free Speech Clause.” Id. at 506. Thus, while the court assumed the existence of the right, it assigned the right the maximum weight possible — the same weight accorded speech on a matter of public concern. If, in the case at hand, the court is going to assume that Shahar’s relationship with her partner constitutes an intimate association under the First Amendment, the court should do as the Colorado Supreme Court did and give it the highest weight possible, the weight given heterosexual marriage.
The other case in which an employee's right was assumed is Barnard v. Jackson County, 43 F.3d 1218 (8th Cir.), cert. denied, -U.S.-, 116 S.Ct. 53, 133 L.Ed.2d 17 (1995). There, an auditor hired by a county legislature to perform an internal audit of the county’s agencies and offices leaked the results of his audit to the press. When the legislators learned what he had done, they terminated his employment. In striking a Pickering balance, the court assumed that the leak was speech on a matter of public concern. Barnard differs from the instant case in that the right the Eighth Circuit assumed and the weight to be accorded to it were well established. In the instant case, while the existence of the right of intimate association has been established, the nature of the right outside of the marital/familial context and the weight such right should be accorded are not well established. Again, the court's assumption in that case tells us to what weight the right is entitled. The court's opinion in the instant case should do the same.
. Pickering was a free speech case: a public high school teacher claimed that his employer fired him because he sent a letter to a local newspaper. The letter was critical of the way that Board of Education and superintendent had handled political issues related to education. 391 U.S. at 564-66, 88 S.Ct. at 1732-33. The Supreme Court concluded that the employer’s action was lawful only if its interests as an employer outweighed the teacher's interest in exercising his free speech right.
Some courts have extended Pickering balancing to scrutinize adverse employment decisions made on account of the employee’s exercise of other constitutionally protected rights. See, e.g., Hatcher v. Board of Pub. Educ. and Orphanage, 809 F.2d 1546, 1559 (11th Cir.1987) (applying *1113Pickering to an expressive association claim); Stough v. Crenshaw County Bd.. of Educ., 744 F.2d 1479, 1480-82 (11th Cir.1984) (applying Pickering to parents’ "constitutional right to control the education of their children"); Brown v. Polk County, 61 F.3d 650, 658-59 (8th Cir.1995) (en banc) (applying Pickering to a free exercise of religion claim), cert. denied, — U.S. -, 116 S.Ct. 1042, 134 L.Ed.2d 189 (1996); Sullivan v. Meade Independent School District No. 101, 530 F.2d 799, 804-06 (8th Cir.1976) (suggesting that Pickering would apply to association claim and substantive due process privacy claim). I do not criticize the court for extending Pickering to claims of intimate association, expressive association, and free exercise. My criticism is with the way in which the court applies Pickering to the assumed rights in this case.
. Nor does the court identify a causal link between Shahar’s exercise of the right in question and the Attorney General’s withdrawal of the offer of employment. As pointed out above, there is no need to engage in Pickering balancing if it has not been shown that the adverse employment decision was caused by the employee's exercise of the constitutional right.
. As the court notes, the Supreme Court has formally located the right of intimate association *1114within the First Amendment. See Board of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545-47, 107 S.Ct. 1940, 1945-46, 95 L.Ed.2d 474 (1987). The cases cited by Roberts, however, are substantive due process cases. Because of this confusion, there exists a split among the circuits as to whether the right of intimate association is a First Amendment or substantive due process right. Compare Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir.1993) (holding that the right of intimate association is "properly based on the concept of liberty in the Fourteenth Amendment”) (quotation marks and citation omitted), and Kraft v. Jacka, 872 F.2d 862, 871 (9th Cir.1989) (same); with Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir.1996) (holding that the right of intimate association is a First Amendment right). I do not believe that this question affects my analysis here, and therefore do not address the issue further.
. The fact that Hardwick addressed homosexual conduct does not undermine this conclusion. The cases I discuss above address conduct as well: the right to get married and the right to have and raise one’s children. Moreover, homosexual conduct is as central to a homosexual “marriage” as heterosexual intercourse is to a heterosexual marriage. The suggestion that homosexual relationships have played a role in our history and traditions while acknowledging that homosexual conduct has played no role in them would be "at best, facetious.”
. Shahar contends that her "intimate association is of the type most central to that personal liberty. Shahar’s interests in creating and maintaining her primary, familial relationship with her partner warrant the greatest weight possible for intimate associations in the Pickering analysis.” Reply Brief at 41. Her relationship with her partner "exemplifies the First Amendment values behind the right of intimate association and weighs heavily on her side of the Pickering scale as a core protected activity.” Reply Brief at 19. Its "purpose was to create a family,” Appellant’s Brief at 23; thus, her "committed union with her female partner is precisely the type of intimate human relationship that the Constitution most strongly protects,” id. at 22. In sum, according to Shahar, the relationship is entitled to the same protection as those relationships explicitly identified by the Supreme Court in Roberts: marriage and familial relationships.
. A reasonable trier of fact could also find that the Attorney General withdrew Shahar’s offer because he could not trust her; during a telephone conversation in June 1991, Shahar misled Deputy Attorney General J. Robert Coleman into believing that she was going to marry a male. A reasonable trier of fact could also or alternatively find that the Attorney General, as he explained to the Dean of the Emory Law School in a letter contained in the record of this case below, withdrew the offer because he thought that Shahar had set him up and planned to use him to advance a homosexual-rights agenda.
With either finding, Shahar’s asserted intimate association claim, as well as her other claims, would fail for lack of proof of causation; that is, the trier of fact would have determined that the Attorney General’s action was not motivated by Shahar’s constitutionally protected activity.
.Moreover, whether the Attorney General would have the benefit of his qualified immunity defense would be problematic. By not raising the issue in this appeal as a ground for affirming the district court's summary rejection of the damages aspect of the case, the Attorney General may be deemed to have abandoned that defense.
. For example, the court could have seized upon language in Roberts which suggests that, in addition to fundamental liberty interests such as marriage and familial relationships, all human relationships constitute liberty interests. These relationships can be arrayed on a spectrum with marital and familial relationships at one end and business relationships at the other. "Between these polls, of course, lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State.” Roberts, 468 U.S. at 620, 104 S.Ct. at 3251. Having seized on this language, the court could have located Shahar's relationship with her partner at some point on this spectrum between marital/familial relationships and business relationships. Then the court could have addressed the question whether *1117the relationship is such that Pickering balancing was required.
Had this been the court's approach, I would have suggested that the court look to Connick for an answer. Connick addressed the question of the scrutiny a court should apply in determining whether a public employer's decision to discharge an employee on account of her speech violated the First Amendment. The Supreme Court distinguished between speech involving a matter of public concern and speech involving a matter of personal concern. With respect to the former, the Court held that the employer's action must be evaluated under Pickering. This is because "speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” 461 U.S. at 145, 103 S.Ct. at 1689 (quotation marks omitted). With respect to speech not involving matters of public concern, the Court held that "it is unnecessary for [courts] to scrutinize the reasons for [the employer's decision].” Id. at 146, 103 S.Ct. at 1690. The Court, however, did "not suggest [that this type of speech] is totally beyond the protection of the first Amendment.” Id. at 147, 103 S.Ct. at 1690.
The Court decided not to scrutinize purely private speech because "government offices could not function if every employment decision became a constitutional matter." Id. at 143, 103 S.Ct. at 1688. For this reason,
government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.
Perhaps the government employer’s dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.
Id. at 146-47, 103 S.Ct. at 1690.
[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.
Id. at 147, 103 S.Ct. at 1690.
If Shahar’s relationship with her partner does not occupy “the highest rung of the hierarchy of First Amendment values” such that it is "entitled to special protection," the court could have held that the Attorney General’s action is beyond scrutiny. For if his action is subject to scrutiny in this case, then any adverse employment decision allegedly based on a relationship within the Roberts spectrum would also be subject to scrutiny. The Connick Court sought to avoid this result.
. The court explains that because Shahar’s religion does not "require” her to marry a woman, “considerable doubt also exists that she has a constitutionally protected federal right to be ‘married’ to another woman to engage in her religion." Ante at [ — ]. I have found no authority for the proposition that the Free Exercise Clause protects only those activities which a person’s religion commands him or her to perform. I believe that Supreme Court precedent is to the contrary. See, e.g., Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 886-87, 110 S.Ct. 1595, 1604-05, 108 L.Ed.2d 876 (1990) (noting that “[rjepeatedly and in many different contexts, [the Supreme Court has] warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim”).