Shahar v. Bowers

I mentioned this case in my summary comment yesterday that noted that the former attorney general (the "Bowers" of Bowers v. Hardwick*) has come out against a "religious freedom" law that (memo in the article cited) he shows is an invitation to discriminate. Such laws are more "religious freedom for some" laws as seen when hypos involving racial discrimination arise. Those truly concerned about religious liberty should care about this. We need push them or call them out as phonies.

Anyway, the case was cited because it will be mostly forgotten (the article cited with his comments included) in the coverage with Bowers being the focus. The link in the footnote provides some background and shows that even in 2001, Bowers didn't want to rest on his laurels -- he argued then that he was simply defending the law, which was his job. The case itself arose out of unusual facts -- police don't usually have a chance to see the sex act performed in person except in cases of public sex -- but there is clear evidence that Hardwick was particularly targeted for being gay. This underlines how discriminatory these laws are, even if facially neutral.

Thus, it wasn't really just a "test case" involving someone who never was ultimately convicted of the act though many (including Justice Powell) saw it that way.  Still, Robin Shahar as staff attorney (she eventually got another government position elsewhere) had a more tangible case -- she lost a job after Michael Bowers found out she has a private religious same sex marriage ceremony. She made a claim on equal protection, intimate association and free exercise grounds but lost when her case went en banc. It came out that Michael Bowers himself was having an extramarital sexual affair -- illegal in Georgia -- but this did not help her legal case in the end.

The case developed through the 1990s, eventually ending up being decided after Romer v. Evans. But, the appeals court ultimately rested on the grounds that public employment sets up a balancing test that the government met.  Her marriage ceremony was a "disruption" to the office and the public might assume she was breaking sodomy laws (which the state supreme court soon struck down in 1998).  The appeals court was strongly divided, strong dissents citing her various claims. This article provides some background and argues the marriage also could be protected as a "speech act," an expression of her status and union.  

"Shahar" itself was a new name the couple gave to themselves -- it means "seeking God" and is a reflection of their Jewish faith.  The marriage ceremony was in 1991.  Same sex marriages were not just something that arose in the last few years. This case shows the various aspects of marriage, including its religious, associative and expressive aspects. The treatment of Robin Shahar also shows the illicit discrimination involved. Why was she fired?  Breaking the law? Really?  Did people known to have sex outside of marriage not get hired?  Fornication was not legal.  And, as the article cited (and the one cited yestersay) discusses, she wasn't purporting the "marriage" was official or making some grand activist statement. 

The important rights at stake here set up a balance that should have gone her way. Luckily, though one should not be surprised if a same sex marriage still led to negative reactions at the work place (especially with so many states not having anti-discrimination protections here), the intimate association rights of same sex couples have much greater constitutional protection today after Lawrence v. Texas.  But, we still have some ways to go and this case should be kept in mind, especially with MB in the news.

[One more thing: There is a reasonable case to be made that Bowers was just doing his job back in the early 1980s defending the sodomy law. There was a policy not to prosecute such cases and Hardwick was not prosecuted, a thing Justice Stevens cited to note the weak grounds of the law.  But, someone did lose her job here and it wasn't "just his job" to do that.  So, Bowers has more to answer for this matter.] 

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 * "Michael Hardwick cannot reflect on the case that bears his name: He died in Gainesville, Fla., on June 13, 1991, reportedly from complications from AIDS. His obituary did not mention either his sexual orientation or his role in challenging the sodomy law." 

Health is at times cited as a reason to be against same sex relations, but it was not the argument put forth by either Georgia or Texas in the cases that  reached the Supreme Court. The laws rests on "morals" and have a sex discrimination component at that. Lesbians have the safest sex.  Bans also generally, as here, make risky behaviors more so.  

And, this interest is at best a bad fit, many unsafe behaviors not included.  For instance, the issue of public sex was noted above. That is seen more here since same sex behavior is looked on with disfavor and (more so in the past when it was often illegal) something that had to be done on the sly. This led to unsafe sex on a regular basis, including in parks or restrooms.