dissenting, in which BARKETT, Circuit Judge, GODBOLD and KRAVITCH, Senior Circuit Judges, joined:
I respectfully dissent. Shahar’s relationship with her partner qualifies as a protected intimate association under the First Amendment for the reasons set out in Judge Kravitch’s dissent, page 1123. I agree with both the majority and dissent that, in a government employment context, the Pickering balancing test is the appropriate test for reviewing official action which implicates First Amendment intimate associational rights. See Pickering v. Board of Educ., 391 *1126U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). I might have found the majority’s application of the Pickering balancing test more convincing were it not for the Supreme Court’s recent decision in Romer v. Evans, — U.S.-, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). In my opinion, the Court’s recognition in Romer that homosexuals, as a class, are entitled to some protection under the Equal Protection Clause bears on the validity — and therefore the weight in applying the Pickering balancing test — of Bowers’ justifications for his action. With Romer in the balance, the scales tip decidedly in favor of Shahar because Bowers’ asserted interests are not a legitimate basis for infringing Shahar’s constitutionally-protected right .of intimate association. For this reason, I dissent from the en banc court’s affirmance of the district court’s order granting summary judgment to Bowers.
In Romer, the Supreme Court held that a Colorado constitutional amendment which discriminates against homosexuals does not pass constitutional muster. Romer, — U.S. at-, 116 S.Ct. at 1627. The Court did not decide the issue of whether homosexuals constitute a suspect class because the Colorado law which was at issue in Romer failed even under the rational basis inquiry. See id. at-, 116 S.Ct. at 1627. The import of Romer, however, is to elucidate what the Supreme Court considers not to be a rational basis for discrimination against homosexuals.1 The state argued that the rationale for the law included “respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality.” Id. at-, 116 S.Ct. at 1629. Over a vigorous dissent by Justice Scalia, a six-justice majority of the Court rejected the state’s rationale, declaring that “animosity toward the class” of homosexuals is not a legitimate basis for state action. Id. at-, 116 S.Ct. at 1628; see id. at-, 116 S.Ct. at 1629 (Scalia, J., dissenting) (“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court ... places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.”). I am compelled to conclude that the Court’s pronouncement in Romer must inform our consideration of Shahar’s intimate association claim.
The Pickering balance in this case requires us to measure Shahar’s right of intimate association against Bowers’ asserted interests in infringing that right in the context of an employment relationship. The weight we accord to Bowers’ asserted interests, however, hinges entirely on the reasonableness of his predictions as to how Shahar’s homosexual relationship might affect or disrupt the Attorney General’s office, see Waters v. Churchill, 511 U.S. 661, 677-78, 114 S.Ct. 1878, 1889, 128 L.Ed.2d 686 (1994); significantly, it is undisputed that Bowers has made no showing of actual disruption to the office. When we closely examine these predictions, we discover that each one is based on a series of assumptions and unsupported inferences about Shahar because of her status as a homosexual,2 I cannot agree with *1127the majority that these inferences and assumptions constitute a legitimate state interest to discriminate against Shahar in light of the Supreme Court’s teaching just last term that mere “animosity toward the class” of homosexuals is not a rational basis for state action. Romer, — U.S. at-, 116 S.Ct. at 1628.
The first inference that Bowers drew from Shahar’s status as a lesbian who married3 another woman is that the public might be hostile to her participation in a same-sex marriage and might view Shahar’s employment by his Department as inconsistent with Georgia law. Bowers argued in his brief that “the public perception is that ‘the natural consequence of a marriage is some sort of sexual conduct, ... and if it’s homosexual, it would have to be sodomy.’ ” Appellee’s Panel Brief at 10-11 (quoting Bowers Dep. at 80-81).4 As the Supreme Court made clear in Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), the government may not transform private biases into legitimate state interests by relying on the prejudices of the public.
Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. “Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private ... prejudice that they assume to be both widely and deeply held.”
*1128Id. at 433, 104 S.Ct. at 1882 (quoting Palmer v. Thompson, 403 U.S. 217, 260-61, 91 S.Ct. 1940, 1962-63, 29 L.Ed.2d 438 (1971) (White, J., dissenting)); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448, 105 S.Ct. 3249, 3258-59, 87 L.Ed.2d 313 (1985) (applying the principle of Palmare to government action reviewed under the rational basis test).
In applying the principle of Palmore to this case, the key question is not whether the government official reasonably could assume that the public might have a negative reaction to the employee’s presence; it is whether the public’s perception upon which the official relies is itself a legitimate basis for government action. If the public’s perception is borne of no more than unsupported assumptions and stereotypes, it is irrational and cannot serve as the basis of legitimate government action.5 In this instance, the public’s (alleged) blanket assumption that “if it’s homosexual, it would have to be sodomy” is based not on anything set forth in the record but rather on public stereotyping and animosity toward homosexuals. Under the principles articulated in Romer, this does not provide the state with a legitimate, rational basis to discriminate against Shahar. Bowers’ “concern” for the public’s perception of homosexuals, therefore, is entitled to . no weight in balancing Shahar’s right of intimate association.
Bowers also asserts an interest in dismissing Shahar under the broad rubric of concern for the internal workings of his office. Bowers advances two main arguments in support of this interest: (1) Shahar’s conduct might undermine the “morale” of the office because some employees might view her conduct as a political statement inconsistent with Georgia’s laws criminalizing sodomy and denying public benefits to couples engaged in same-sex marriages; and (2) as Attorney General, Bowers is justified in assuming not only that Shahar would violate Georgia law by committing sodomy but, moreover, that she necessarily would have a conflict of interest with respect to certain types of controversial cases involving sodomy or benefits for same-sex partners.
Bowers’ argument with respect to the alleged deleterious effect of Shahar’s status and conduct on “morale” within the office is another attempt to legitimize his adverse action against Shahar on the basis of inferences that others — here, his employees — might derive from her status as a lesbian. The inferences from Shahar’s acknowledged homosexuality that she is likely to violate Georgia’s sodomy law, or would be unable or unwilling to enforce Georgia’s sodomy or marriage laws, is no more justified on behalf of Bowers or his employees than it is on behalf of the public. Moreover, it is important to note that Bowers’ speculation regarding Shahar’s ability to handle certain types of cases is just that: speculation. Bowers has emphatically refused to meet with Shahar to discuss any of his concerns. Compounding this deficiency in Bowers’ assertion that his prediction is “reasonable” is the fact that Bowers does not make the same assumption with respect to any of his other employees: He does not assume, for instance, that an unmarried employee who is openly dating an individual of the opposite sex has likely committed fornication,6 a criminal offense in Georgia, and thus may have a potential conflict in enforcing the fornication law. Nor, for that matter, does he apparently assume that married employees could well have committed sodomy— i.e., oral or anal sex, see O.C.G.A. § 16-6-2— *1129and could themselves have a potential conflict in enforcing Georgia’s sodomy law.7
In short, Bowers’ asserted interests in taking adverse action against Shahar are based on inferences from her status as a homosexual which Bowers claims that he, the public, and department staff are entitled to make. In light of the Supreme Court’s decision in Romer, these status-based inferences, unsupported by any facts in the record and explained only by animosity toward and stereotyping of homosexuals, do not constitute a legitimate interest that outweighs Shahar’s First Amendment right of intimate.association. Accordingly, I would reverse the district court’s order granting summary judgment to Bowers.
. Although the discriminatory conduct that occurred in Romer arose in a different factual context than this case, I disagree with the majority’s attempt to distinguish Romer to the extent that it finds it to be wholly irrelevant. The reasoning and principles enunciated in Romer are, in my view, highly relevant to this case and provide a directive that, at least, should inform our analysis.
. The distinction that the majority draws between Shahar’s status as a homosexual and her conduct in entering into a homosexual marriage, see Majority op. at 1111 n. 27, is truly a distinction without a difference, in my opinion. It is a matter of simple logic that only homosexuals would enter into a homosexual marriage. Bowers' action, therefore, draws a distinction that, on its face, reaches homosexuals only and distinguishes among similarly situated people on the basis of one trait only: that they are homosexual.
Bowers cannot escape this conclusion by subdividing the class of homosexuals into those who elect to enter into a homosexual marriage and those who do not, and then claiming that he discriminated against Shahar not because of her status as a homosexual, but because she is a homosexual and she entered into a homosexual marriage. The Supreme Court’s decision in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) is instructive on this point. In Loving, the Supreme Court struck down as unconstitutional Virginia's anti-miscegenation statute. As the state of Virginia argued, that statute was not directed at a specific race. Ld. at 7-8, 87 S.Ct. at 1821. Yet, the Supreme Court *1127concluded in Loving that the statute did invoke a racial classification, id. at 8-9, 87 S.Ct. at 1822, notwithstanding the fact that it applied only to blacks and whites who engaged in the "conduct," Majority op. at 1111 n. 27, of marrying a person from another race. This case is no less about classification on the basis of sexual orientation than Loving was about classification on the basis of race. According to the manifest logic of Ixiving, therefore, Bowers' action drew a classification along lines of sexual orientation. With the advent of Romer, such a classification has a significant effect on the Pickering balancing equation.
In his special concurrence, Judge Tjoflat agrees with the majority that the record does not support an inference that Bowers' decision was based on Shahar’s homosexual status. Considering the fact that the briefs as well as all the opinions in this case are riddled with references to Shahar’s homosexual status and the reasonableness — or non-reasonableness — of Bowers' inferences from that status, I find it difficult to understand how we can seriously contend that an inference of discrimination on the basis of homosexual status cannot be made. The special concurrence attempts to avoid the equal protection dimension of this case by using a cramped view of causation. See ante at 1116 ("A reasonable trier of fact could find from the record in this case 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."). It is easy to appreciate this by imagining, as the special concurrence suggests, see ante at 1116, that Shahar had been dismissed because she was a white woman that married a black man, and replacing references to homosexuality by references to race in both the majority and concurring opinions. For example, the footnote which accompanies the above quoted text from the special concurrence, see ante at 1116 n. 9, would have stated: "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 [white] 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 [racial-equality] agenda.” A clearer violation of the Equal Protection Clause hardly could have been presented.
. In connection with Shahar's relationship with her partner, I am using the words "married” or "marriage” in their generic sense of a committed, intimate union. It may be important to note that at no time has Shahar violated Georgia law by entering into a homosexual marriage. A Georgia law that was enacted in 1996, almost five years after Shahar was dismissed by Bowers, declares that Georgia does not recognize same-sex marriages. See O.C.G.A. § 19-3-3.1 (Supp. 1996); see also O.C.G.A. § 19-3-30(b)(l) (Supp. 1996) ("No marriage license shall be issued to persons of the same sex.”). Shahar has not sought to obtain a marriage certificate or to have her marriage legally recognized by the state of Georgia.
. In the face of Shahar's evidence of statistical studies showing that lesbians prefer to engage in non-sodomy sexual practices, rather than anal or oral sex — the only two practices prohibited by Georgia's sodomy statute — , Bowers argues that the public is not aware of these statistics and that, therefore, the public’s erroneous assumptions about lesbians take precedence. Erroneous assumptions about a person, however, are not a rational basis for discriminating against that person, even if these erroneous assumptions are wide-spread and are religiously based. See Romer, -U.S. at-, 116 S.Ct. at 1629.
. For this reason, the majority’s citation to McMullen v. Carson, 754 F.2d 936 (11th Cir.1985), in which a state official relied on anticipated public reaction as a basis for dismissing a Klu Klux Klan recruiter from a sheriff's office, is misplaced. In light of the Klan’s undisputed history of criminal violence against minorities in this country, I can hardly imagine anyone would argue that the public's assumption that membership in the Klan is antithetical to the work of an employee of a law enforcement agency is irrational.
. In Georgia, “[a]n unmarried person commits the offense of fornication when he voluntarily has sexual intercourse with another person.” O.C.G.A. § 16-6-18. I trust that no one would find unreasonable, in the colloquial sense of the word, the assumption that Georgia’s fornication law is frequently disregarded by the citizenry of Georgia or perhaps even the unmarried staff of its Department of Law.
. In the context of a habeas petition by a married heterosexual convicted of sodomy, Moseley v. Esposito, No. 89-6897-1 (Super. Ct. DeKalb Co.), Bowers’ Department of Law moved to strike the petitioner’s motion to discover whether any of Bowers’ attorneys had themselves ever violated the sodomy law because "[t]he personal conduct [of Department attorneys] is no more relevant than the personal conduct of Petitioner’s counsel or the Court.” R2-35-Exh. B at 2 (Brief in Support of Motion to Strike and Expunge in Moseley); see also id. at 3-4 ("The information [Moseley] seeks has nothing to do with professional impropriety, but rather is wholly irrelevant____”). Bowers has no reason for believing that Shahar’s personal conduct would affect her abilities to ethically represent the state, except based on an impermissible inference from her status as a homosexual. Lawyers are trained to be advocates of legal positions with which they may personally disagree.