Lambda Responds to 'Disturbing' Anti-Gay Federal Court Decision

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Appeal to high court in Shahar v. Bowers under consideration
June 1, 1997

(NEW YORK, Sunday, June 1, 1997) --Lambda Legal Defense and Education Fund, in an angry statement, denounced a Georgia federal court ruling that upheld the firing of an Atlanta attorney from a government job solely because she is a lesbian who had a private, religious commitment ceremony with her partner.

The employer in this case is Michael J. Bowers, now stepping down as attorney general of the State of Georgia for an anticipated campaign for governor. Notorious for his successful defense of the state's sodomy law against a gay man that went all the way to the United States Supreme Court, Bowers dismissed Robin J. Shahar from a staff attorney position in 1991, after learning she planned to have a Jewish wedding ceremony with a woman.

"It is pure and simple discrimination to require lesbian and gay workers to hide their sexual orientation and important relationships," said Lambda Legal Director Beatrice Dohrn after the U.S. Court of Appeals for the Eleventh Circuit issued its decision in Shahar v. Bowers late Friday.

"In direct contradiction of Romer v. Evans, the Court accepted Bowers's concerns about public antipathy and stereotypes as justification for his decision," Dohrn said, noting the Supreme Court's landmark ruling last year against an anti-gay Colorado amendment. "The high court has made clear that public animosity toward gay people cannot dictate the actions of government," she said.

"Bowers's fears about public perception and supposed conflicts of interest never would have entered his mind if Shahar had been living with a man," Dohrn said, adding, "Shahar's constitutional rights didn't disappear when she entered a religious marriage. The notion of religious marriage for a lesbian couple seems to have blinded Bowers and the Court."

Of the court's commentary in relying on Bowers's presumptions, Dohrn said, "Even more disturbing is the court's comparison of a Jewish commitment ceremony between two women with a person's joining the Ku Klux Klan. Surely the public in Georgia and throughout the country sees the difference between an attorney who does not hide that she is in a personal, committed, loving relationship and someone who is a recruiter for a racist, violent organization."

Lambda is the oldest and largest legal organization defending the civil rights of lesbians, gay men, and people with AIDS and HIV. In late June, it will open a Southern Regional Office in Atlanta, the first such office for a national gay organization.

Joined by groups such as the American Federation of State, County, and Municipal Employees- AFL-CIO and the Southern Poverty Law Center, Lambda filed an amicus brief supporting Shahar, who was represented by the ACLU in the case. Ruth Harlow, now managing attorney for Lambda, argued for Shahar before the court on October 23, 1996, in her prior capacity as a national ACLU attorney.

"This reflects a blatant double standard against gay people," Dohrn said of the Court's and Bowers's focus on Georgia's sodomy law, which applies to non-gay as well as gay couples. "When Bowers's heterosexual attorneys litigated a heterosexual sodomy case under Georgia's consensual sodomy statute that applies to everyone, he proclaimed in court papers that his attorneys' sexual behavior was absolutely irrelevant to their professional duties.

"When a lesbian attorney was honest about her sexual orientation, she was thrown out with claims that she was a lawbreaker who could not possibly carry out her professional work without conflicts of interest," Dohrn said.

In an 8-4 decision, the full court disagreed with a ruling by a three-judge appeals panel that said the attorney general's firing Shahar infringed on her right of intimate association. The panel sent the case back for trial under the most exacting constitutional standard; Bowers appealed to the full court.

Four forceful dissenting opinions criticized Friday's dismissal of Shahar's constitutional claims under the rights of equal protection, free exercise of religion, and intimate association, referring in particular to the Supreme Court's Romer decision.

"In short, Bowers's 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," wrote Judge Stanley F. Birch, Jr., in one dissent. "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," he said.

Senior Circuit Judge John. C. Godbold, in a dissent joined by Judges Phyllis A. Kravitch and Rosemary Barkett, criticized Bowers's equation of Shahar's religious commitment ceremony with her claiming a right to civil marriage. "Shahar does not assert a right to be married as provided by the laws of Georgia (statutory or common law), or to be issued a marriage license, or to inherit from her spouse .... She does not question the constitutionality of the Georgia marriage license statute or any provisions of Georgia law .... Nor does she question the validity of Georgia principles of common law marriages."

Judge Godbold quoted his now-vacated panel ruling:

"What Shahar claims is that she proposed to -- and did -- engage in a Jewish religious ceremony that is recognized as a marriage ceremony by the branch of Judaism to which she adheres; that this conferred upon her and her partner a religious-based status that is apart from and independent of civil marriage as provided by Georgia law; and that she can accept, describe, and hold out both the ceremonial event and the status created by it by using the term 'marriage.'"

Dohrn said the case also highlights the need for clear statements against anti-gay job discrimination, such as with laws like the proposed Employment Non-Discrimination Act. "Most Americans oppose job discrimination. It is ironic that a government employer would want to discriminate by exempting from constitutional rules those whose very job it is to uphold the Constitution."

Dohrn said that Lambda and the ACLU would review the opinion and dissents, numbering more than one hundred pages, before any decision is made on whether to petition for an appeal to the Supreme Court.

(#93-9345)

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