Robin Joy Shahar v. Michael J. Bowers, Individually and in His Official Capacity as Attorney General of the State of Georgia

KRAVITCH, Senior Circuit Judge,

dissenting, in which BARKETT, Circuit Judge, GODBOLD, Senior Circuit Judge, join:

I adhere to the view, previously expressed in my opinion.in the now-vacated panel decision of this case, that the district court: (1) correctly recognized that Shahar’s relationship with her partner qualifies as a protected intimate association under the First Amendment; and (2) erroneously concluded that, on the record of this case, Bowers’ legitimate interests as a public employer outweighed Shahar’s constitutionally-recognized, associational interests. Accordingly, I dissent from the en banc court’s affirmance of the district court’s grant of summary judgment to Bowers.

I begin by noting what this case does not concern. It does not involve a claim that homosexuals have a constitutional right to marry in the civil or legal sense. Shahar *1123used words, such as “marriage” and “wedding”, in a generic, not a legalistic, sense when she described her relationship with her partner.1 Due to her religious beliefs, these words also took on a spiritual character for Shahar, but she never contested her ineligibility for the legal benefits of a civil marriage under Georgia law. As a result, the court is not called, as the en banc majority implies in Footnote 2 of its opinion, to engage the “constitutional controversy” over the “institution of marriage.”2

The first issue properly before the court is whether Shahar’s relationship with her partner qualifies as an intimate association under the Constitution. The Supreme Court has held “that the First Amendment protects those relationships, including family relationships, that presuppose ‘deep attachments and commitments to the necessarily few other individuals with whom one shares a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life.’ ” Bd. of Directors of Rotary Int’l v. Rotary Club, 481 U.S. 537, 545, 107 S.Ct. 1940, 1946, 95 L.Ed.2d 474 (1987) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 619-20, 104 S.Ct. 3244, 3250-51, 82 L.Ed.2d 462 (1984)). This court has applied the intimate association doctrine expansively to cover not only well-established familial bonds, but also dating couples. See Wilson v. Taylor, 733 F.2d 1539 (11th Cir.1984) (ruling that non-marital relationship between police officer and daughter of reputed, organized crime figure is protected intimate association). Shahar’s relationship with her partner satisfies the Supreme Court’s definition of an intimate association in that it is characterized by “relative smallness, a high degree of selectivity in decisions to begin and maintain an affiliation, and seclusion from others in critical aspects of the relationship.” Roberts, 468 U.S. at 620, 104 S.Ct. at 3250. In light of this court’s ruling in Wilson and the Supreme Court’s ruling in Roberts, I conclude that Shahar’s relationship with her partner qualifies as a protected intimate association under the First Amendment.3

I agree with the en banc majority that the right of intimate association is not absolute, and that in the public employment context adverse actions which implicate intimate associational interests should be reviewed pursuant to the balancing test first enunciated in Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See Stough v. Gallagher, 967 F.2d 1523, 1527 (11th Cir.1992) (ruling that under Pickering “courts must balance the [protected First Amendment] interests of the public employees as citizens ... and the interest of the ‘State as an employer, in promoting the effi*1124eieney of the public services it performs through its employees’ ” (quoting Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35)). In my view, however, the en banc majority has employed a balancing test in name only.4 The en banc majority’s opinion devotes paragraph after paragraph to Bowers’ interests, but gives short shrift to Shahar’s intimate associational interests. In contrast, Judge Godbold’s dissenting opinion eloquently relates the sincerity and depth of feeling which underlies Shahar’s connection to her partner. Because the association in question falls close to the familial end of the continuum of human relationships, I conclude that Shahar’s interests weigh heavily in the Pickering balance. See Roberts, 468 U.S. at 620, 104 S.Ct. at 3250-51 (contrasting family ties with large business enterprises in observing that various associational bonds support “greater and lesser claims to constitutional protection”).

On the other side of the balance, the en banc majority first considers Bowers’ interests in the internal workings of his office. Bowers has not asserted that Shahar’s association caused any actual disruption of the functioning of his staff. Instead, Bowers has forecast that Shahar’s presence will undermine morale and create divisions within the Georgia Department of Law because some employees will view her association as a political statement inconsistent with state laws that the Department must enforce. The en banc majority correctly notes that courts must give “substantial weight to government employers’ reasonable predictions of disruption____” Waters v. Churchill, 511 U.S. 661, 673, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686 (1994). The Supreme Court, however, has rejected the notion that courts must accept blindly all claims of harm conjured by government employers:

On the other hand, we do not believe that the court must apply the [balancing] test only to the facts as the employer thought them to be, without considering the reasonableness of the employer’s conclusions. Even in situations where courts have recognized the special expertise and special needs of certain decisionmakers, the deference to their conclusions has never been complete____ We think employer decisionmaking will not be unduly burdened by having courts look to the facts as the employer reasonably found them to be. It may be unreasonable, for example, for the employer to come to a conclusion based on no evidence at all. Likewise, it may be unreasonable for an employer to act based on extremely weak evidence when strong evidence is clearly available — if, for instance, an employee is accused of writing an improper letter to the editor, and instead of just reading the letter, the employer decides what it said based on unreliable hearsay.

Id. at 677, 114 S.Ct. at 1889 (emphasis in original).

To the extent Bowers concluded Shahar would disrupt the office because her relationship could be interpreted as a political statement, he did not act reasonably. Shahar’s association with her partner, although not secret, was private. Shahar’s religious marriage ceremony was by invitation and was held in another state. It was neither announced in the newspapers, nor otherwise reported publicly.5 Further, Shahar never claimed she had contracted a legal marriage, nor did she challenge her legal ineligibility for civil marriage. Bowers could and should have ascertained all of these facts before he took action against Shahar. Instead, as Judge Godbold notes in his dissent, Bowers *1125categorically refused to discuss his purported concerns with Shahar. Finally, the record confirms that Bowers had no factual basis to believe Shahar had violated the law or advocated violations of law.6 Because Bowers failed to act reasonably, under Waters, his predictions regarding intra-office strife do not weigh very heavily in the balance.

Bowers’ other main justification for his action centers around his fear of negative public reaction to his hiring of Shahar. Although public confidence certainly is a relevant concern for Bowers, it is important to note that catering to private prejudice is not a legitimate government interest. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448, 105 S.Ct. 3249, 3258-59, 87 L.Ed.2d 313 (1985); Palmore v. Sidoti 466 U.S. 429, 433, 104 S.Ct. 1879, 1882, 80 L.Ed.2d 421 (1984). The en banc majority attempts to justify its emphasis on anticipated public hostility by pointing to McMullen v. Carson, 754 F.2d 936 (11th Cir.1985), a case in which this court considered public reaction to the presence of a Ku Klux Klan recruiter in a sheriffs office in affirming a governmental employment decision. McMullen, however, bears no relationship to this case.

First, unlike McMullen, where the employee publicized his association with the Klan on a television news broadcast, in this case, Shahar did not make any public statements. Further, the sheriffs decision in McMullen was not simply based on his prediction that the public would be biased against the Klan-affiliated employee. Rather, the record established that “violent racism has become the Klan’s trademark ... [that] [d]ivisive, confrontational tactics are used by the Klan during periods of racial unrest in order to promote recruitment [and that] [t]hose tactics are still being used in Florida.” McMullen, 754 F.2d at 938 (emphasis added). The sheriff and the community thus reasonably could conclude that the Klan recruiter sanctioned such inflammatory, often illegal, activities. In contrast, Bowers simply baldly asserted that public reaction to Shahar’s pending employment with his office would have prevented him from serving the state effectively. In light of the Klan’s undisputed history of criminal violence, public reaction in McMullen was not only more certain, but also likely would have been more severe than anything which reasonably might have been projected in this case. Finally, although public concern over the Klan’s criminally violent activities is á legitimate basis for governmental action, the Supreme Court has now held that animosity toward gay people is an illegitimate purpose for state policy, and thus, to prevail in the balancing of interests, Bowers must cite more than perceived, public distaste for homosexuals. See generally Romer v. Evans, — U.S. -, -, 116 S.Ct. 1620, 1629, 134 L.Ed.2d 855 (1996).

The foregoing analysis leads me to conclude that, on the record of this case, Shahar’s constitutional interest in pursuing her intimate association with her partner outweighs any threat to the operation of the Georgia Department of Law. Accordingly, I would reverse the district court’s order granting summary judgment against Shahar.7 For these reasons, I respectfully dissent.

. Such generic meanings are an established part of the English language. Webster’s New Collegiate Dictionary (1979) at 698 (giving "an intimate or close union” as one definition of marriage), 1318 (noting that wedding is defined, inter alia, as “an act, process, or instance of joining in close association”).

. Certainly, it would have been more prudent for Shahar to have consistently used terms, such as "commitment ceremony” and "partnership”, to refer to her relationship. Shahar's use of language, however, does not transform this case into a debate over traditional marriage, particularly given that she only used the controversial terms with members of Bowers' staff in two conversations and on one conflict of interest form.

. Bowers apparently recognizes that Shahar’s relationship with her partner meets the objective characteristics of an intimate association outlined in Roberts and its progeny, and therefore, he contends a further requirement applies, namely that the relationship in question must fall within the categoiy of associations traditionally endorsed by society at large. In support of this argument, Bowers cites FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), a case in which the Supreme Court upheld the constitutionality of a local licensing ordinance for motels that rented rooms for periods of less than 10 hours. In so ruling, the Court observed that associations "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 611. In my view, the foregoing statement stands for the proposition that superficial relationships fail to qualify as intimate associations under the Constitution, not for the proposition that courts should deny recognition to deep-seated relationships which are, or have been, unpopular. Because Shahar’s relationship with her partner unquestionably constitutes a close, ongoing interpersonal association, not an hours-long encounter, FW/PBS does not undermine her claim for constitutional protection.

. The en banc majority properly recognizes that as the chief law enforcement officer in Georgia, Bowers’ legitimate concerns for the functioning of his staff carry special weight in the Pickering balance. I believe, however, that the en banc majority goes further, and inappropriately grants virtually absolute deference to Bowers, without weighing the countervailing interests on which he impinges. Such an approach categorically exempts Bowers' employment decisions from scrutiny, and therefore, is inconsistent with well-established authority mandating particularized decision-making in this context. See, e.g., Bates v. Hunt, 3 F.3d 374, 378 (11th Cir.1993) (“[Wjhether a governmental employer has improperly infringed on an employee’s First Amendment rights turns on the specific facts of the particular case: a 'case-by-case’ analysis is required.”).

. The fact that Shahar did not publicize her relationship similarly undercuts Bowers’ claim that Shahar showed poor judgment.

. In fact, Bowers testified that he “didn’t know whether [Shahar] violated the law or not,” Bowers Dep. at 67, and that he didn’t "know the nature of the sexual relationfs between Shahar and her partner], if any,” id. at 69.

. Because I conclude Shahar’s other claims would not warrant relief beyond that to which Shahar would be entitled pursuant to her intimate association claim, I do not address any other issues raised in this appeal.