Supreme Court Rejects Appeal From Lesbian Lawyer in Georgia
New York Times,
January 13, 1998
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By Linda Greenhouse
WASHINGTON -- A woman who lost a promised job as a lawyer in the Georgia
attorney general's office, after the state attorney general learned that she was planning
a marriage ceremony with her lesbian partner, failed Monday to persuade the Supreme Court
to hear her appeal.
The case had been closely watched for several years as a potential vehicle for a new
Supreme Court decision on gay rights. The same Georgia attorney general, Michael Bowers, a
Republican who recently resigned to run for governor, was also a party in the court's 1986
decision, Bowers vs. Hardwick, which rejected a constitutional right to privacy for sex
between consenting adults of the same sex.
Bowers withdrew his job offer to Robin Shahar, a top-ranked graduate of Emory
University law school, on the ground that "inaction on my part would constitute tacit
approval of this purported marriage and jeopardize the proper functioning of this
office." Ms. Shahar was to have started her job in the fall of 1991, shortly after
she and her partner celebrated their commitment to one another in a Jewish ceremony
performed by a rabbi.
Ms. Shahar, who had worked as a summer law clerk in the attorney general's office,
brought a lawsuit in U.S. District Court in Atlanta. She contended that the withdrawal of
the job offer violated her constitutional rights to equal protection and to "intimate
and expressive association" as protected by the First Amendment.
She lost in district court, then won a temporary victory from a three-judge appellate
panel. That ruling was then overturned last June by an 8-4 vote of the full 11th U.S.
Circuit Court of Appeals in Atlanta. The majority there said the attorney general's
concerns about "perceived public hostility" toward same-sex marriages were
reasonable and formed a sufficient basis for his actions. Even assuming that the case
involved personal rights that were entitled to "substantial weight" in the
context of public employment, the appeals courts said, these individual rights were
outweighed by the department's own interest in its efficient operation.
In her Supreme Court appeal, Shahar vs. Bowers, No. 97-751, brought jointly by the
Lambda Legal Defense and Education Fund and the American Civil Liberties Union, Ms. Shahar
said the court should "make clear that belonging to an unpopular group, defined by
'controversial' or 'discomforting' personal characteristics, cannot trigger greater,
selective limitations on public employees' First Amendment activities."
Last August, after Bowers publicly acknowledged having had an adulterous relationship
with a woman employed in his department, Ms. Shahar sought to reopen the case to show that
his office's asserted standards of sexual propriety were not being applied evenhandedly.
The 11th Circuit denied Ms. Shahar's petition for a re-hearing.
Ms. Shahar has worked for the last few years as a lawyer for the city of Atlanta and
has received several promotions, her lawyer, Ruth E. Harlow, said Monday.
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