Court rejects appeal from lawyer denied job by Bowers
Atlanta Journal Constitution, January 12, 1998
72 Marietta Street NW, Atlanta, GA 30303
(Fax 404-526-5746) (Email: journal@ajc.com)
By Richard Carelli, The Associated Press
Washington -- A lesbian lawyer who says she was unlawfully denied a job on the Georgia
attorney general's staff because of her impending "marriage'' to another woman lost a
Supreme Court appeal today.
The justices, passing up a case closely watched by gay rights groups, let stand a
ruling that said Robin Joy Shahar's rights were not violated when a job offer was
withdrawn.
"I'm very disappointed by the decision,'' Ms. Shahar said today. "There is
often a lag between the public's perception and intolerance of unfairness and the court's
willingness to rectify unfairness.
"In the future, people will look back on this case with embarrassment.'' Ms.
Shahar contends that former Georgia Attorney General Michael Bowers violated her rights of
association and equal protection by the action he took in 1991.
Ms. Shahar was a law student when she worked as a law clerk in the Georgia Department
of Law in the summer of 1990. That September, Bowers offered her a job as a staff attorney
when she graduated from law school. She accepted and was to begin work in September 1991.
In July 1991, Ms. Shahar and another woman made a lifelong commitment to one another in
a religious ceremony. Ms. Shahar said she realized the ceremony had no legal significance
but she and her partner wanted to celebrate their union within their religious and
personal spheres.
A few weeks before the event, Ms. Shahar received a letter from Bowers that withdrew
her job offer.
"This action has become necessary,'' Bowers said, ``in light of information which
has only recently come to my attention relating to a purported marriage between you and
another woman.
"As chief legal officer of this state, inaction on my part would constitute tacit
approval of this purported marriage and jeopardize the proper functioning of this
office,'' Bowers said.
Ms. Shahar sued. A federal trial judge ruled that her relationship with her partner was
a "constitutionally protected intimate association,'' but concluded that Bowers had
not acted unlawfully.
The entire 11th U.S. Circuit Court of Appeals upheld Bowers' victory last May, voting
8-4 that he had not violated any of Ms. Shahar's rights.
The appeals court judged Bowers' action after assuming -- only for the sake of argument
-- that Ms. Shahar had some constitutional right to be intimately associated with another
woman.
The appeals court said it was reasonable to believe that lesbians who profess to be
married to each other engage in homosexual relations in violation of state law.
It added: "We cannot say that Georgia's attorney general is clearly wrong to worry
that reasonable people -- inside and outside the Law Department -- in Georgia could think
along these same lines.''
The Supreme Court in 1986 upheld Georgia's anti-sodomy law as applied to its ban on
consenting adults engaging in homosexual conduct.
Three of the four dissenting appeals court judges said Bowers' concern about negative
public reaction was not enough justification for withdrawing the job offer. ``It is
important to note that catering to private prejudice is not a legitimate government
interest,'' they said.
Ms. Shahar asked the appeals court to reconsider its ruling after Bowers, who left
office to be a Republican candidate for governor in the 1998 elections, revealed that for
more than a decade he had an adulterous affair with a woman he once employed.
The appeals court refused such reconsideration, but three dissenting judges said the
revelation was relevant in deciding whether Bowers' stated concern about public reaction
to sexual misconduct in his office was the real reason he withdrew the job offer.
In the appeal acted on today, Ms. Shahar's lawyers argued that Bowers action
"rests on irrational prejudice toward gay people.''
But Georgia's lawyers said Bowers' action was based on Ms. Shahar's "holding
herself out as married to another woman, and was not precipitated by some generalized
animus against homosexuals.''
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