Rode v. Dellarciprete

A. LEON HIGGINBOTHAM, Jr., Circuit Judge,

dissenting in part.

Although I agree with much of the majority’s opinion, 1 we part company in analyzing the legal basis for appellant’s claim under 42 U.S.C. § 1983 (1982). The majority’s decision to affirm the entry of summary judgment for appellees on this claim devalues the constitutional protection of the intimate associations of family members. I believe that fidelity to a fundamental strand of constitutional law requires reversal of this aspect of the district court’s summary judgment. Because the majority denies appellant a trial on the viable legal basis for her § 1983 action, I respectfully dissent.

Appellant Vivian M. Rode, a white woman, claims that she became a victim of workplace discrimination because her brother-in-law Jay C. Hileman, who also is white and was a state employee at the time in question, testified for the black plaintiff class in a successful federal employment discrimination action against the Pennsylvania State Police. The district court, noting its inability to find any court holding that a sibling relationship is protected association under the first amendment, 2 “conclude[d] that Rode’s relationship with her brother-in-law is not entitled to First Amendment protection.” Rode v. Dellarciprete, 646 F.Supp. 876, 881 (M.D.Pa.1986). The majority agrees, explaining that Rode’s relationship to Hileman does not fit the typology of relationships that have been “afforded special constitutional protection” by federal courts. Maj. typescript at 21. This is so, according to the majority, because an “in-law” relationship is not “ ‘selected,’ ” not “bound by blood,” and not “based on the ‘creation and sustenance of a family.’ ” Id. (citation omitted).

*1210 At the threshold, I strongly disagree with the majority’s formalistic approach to this legal question. Unlike the majority’s short checklist of categories, the Supreme Court’s explanations of the constitutionally-protected “freedom of private association,” Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. -, 107 S.Ct. 1940, 1945 , 95 L.Ed.2d 474 (1987) (“Rotary Club ”), have “not attempted to mark ... precise boundaries_” Id. Instead, the Court has called for “a careful assessment of where [a] relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments.” Roberts v. United States Jaycees, 468 U.S. 609, 620 , 104 S.Ct. 3244, 3251 , 82 L.Ed.2d 462 (1984). To aid this process of careful assessment, the Court has “note[d] only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent.” Id.; accord Rotary Club, 107 S.Ct. at 1946 . The Court has never even implied, much less held as a matter of law, that certain categories of personal association are per se unprotected. Indeed, the Court has not even applied that designation to relationships that “involve[ ] the participation of strangers....,” Roberts, 468 U.S. at 621 , 104 S.Ct. at 3251 ; accord Rotary Club, 107 S.Ct. at 1946 , “such as a large business enterprise....” Roberts, 468 U.S. at 620 , 104 S.Ct. at 3251 . The Court has merely noted that such associations “seem[ ] remote from the concerns giving rise to this constitutional protection.” Id.

The majority’s evaluation of Rode’s claim that her relationship with her brother-in-law is constitutionally protected seems to begin and end, as did the district court’s, with the realization that there is no federal appellate decision directly on-point. A better approach, I believe, is to assess the status of “in-law” association in light of the pertinent factors that the Supreme Court identified in Roberts and Rotary Club.

A consideration of these factors leads me to conclude that an “in-law” relationship may be constitutionally protected. 3 Such a relationship is certainly small in size. Even if one makes extreme assumptions (e.g., that Rode has ten sisters, each of whom will marry twice), any woman will have a rather small number of brothers-in-law during the course of her lifetime, and her relationship with each of them is or will be, by definition, one-on-one. In addition, the purpose of any “in-law” relationship obviously derives from the purpose of marriage itself, which

is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects[;] ... an association for a[] noble ... purpose_

Griswold v. Connecticut, 381 U.S. 479, 486 , 85 S.Ct. 1678, 1682 , 14 L.Ed.2d 510 (1965). Finally, an “in-law” relationship is certainly selective, at least in the sense that “in-laws” may not always be categorized as “strangers.” An “in-law” relationship is produced when at least two people make a discriminating choice of life partners. Such a relationship is also, if I understand the majority’s use of the term, “selected,” for a significant factor in a decision to marry can be one’s assessment of his or her prospective “in-laws,” the parents and the siblings. In sum, the relevant factors indicate that Rode’s relationship with Hileman stands, on the constitutional spectrum, quite near the association that legally produced it: her sister’s marital relationship with Hileman, which is at the core of constitutional protection.

Notwithstanding all the well-worn jokes about “in-laws,” we must remember that “[t]he life of the law has not been logic: it has been experience.” O. Holmes, The Common Law at 1 (1881). Experience teaches us that all mothers-in-law are not *1211 ogres, and that all sisters-in-law are not, to each other, strangers. It also teaches us that some “in-laws” can be as close as any blood relatives. Viewed from the perspective of an oppressor who wishes to retaliate against the intimate associates of an innocent person, retaliatory conduct against a sister-in-law can be as intentional, vengeful and cruelly effective as would be acts perpetrated against the innocent’s wife. The majority seems to forget that Rode is the blood sister of Hileman’s wife. Whatever the quality of their relationship, we cannot assume that she views her sister as a stranger. Moreover, it is naive to assume that, once Rode became a victim of allegedly deliberate, harsh treatment in response to Hileman’s truthful testimony in a discrimination trial, Rode’s sister would be indifferent. The majority seems to agree that, if Rode was Hileman’s wife or sister, she would have a cause of action under § 1983 for the alleged retaliatory conduct. From my view, the fact that Rode is “only” Hileman’s sister-in-law makes no constitutional difference.

For all these reasons, I believe that, as a legal matter, the majority’s conclusion is simply wrong. See generally Lyng v. International Union, United Auto. Aerospace & Agricultural Implement Workers of Am., — U.S.-,-, 108 S.Ct. 1184, 1187-88 , 99 L.Ed.2d 380 (1988) (evaluating the associational rights of “ ‘close relatives’ ”) (quoting Lyng v. Castillo, 477 U.S. 635, 638 , 106 S.Ct. 2727, 2729 , 91 L.Ed.2d 527 (1986)); Moore v. East Cleveland, 431 U.S. 494 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977) (plurality opinion) (right to cohabitation with one's relatives); Trujillo v. Board of County Comm’rs of the County of Santa Fe, 768 F.2d 1186, 1189 (10th Cir.1985) (mother and sister have constitutionally-protected interests in their relationships with, respectively, their son and brother); Wilson v. Taylor, 733 F.2d 1539, 1543-44 (11th Cir.1984) (“simply dating” creates a relationship protected under the first amendment freedom of association); cf. Smith v. Department of Public Health, 428 Mich. 540 , 410 N.W.2d 749 (1987) (defendants entitled to judgment, in action alleging denial of promotion by state police because plaintiff’s brother was a “student activist,” because the state is not a “person” for purposes of a damages suit under § 1983), cert. granted sub nom. Will v. Michigan Dep’t of State Police, —- U.S. -, 108 S.Ct. 1466 , 99 L.Ed.2d 696 (1988). Accordingly, I dissent.

. In particular, I join the majority’s legal determinations (1) that appellant is entitled to damages for her suspension from service, (2) that the equal protection clause does not provide a basis for appellant’s claim under 42 U.S.C. § 1983 (1982), (3) that the district court properly granted summary judgment for appellees on appellant’s claim under 42 U.S.C. § 1985 (1982), and (4) that the district court properly dismissed appellant’s claims against defendants Richard Thornburgh and Leroy S. Zimmerman.

. In this regard, the district court relied on its unpublished opinion, Cole v. Allied Servs. for the Handicapped, Civil No. 85-1851 (M.D.Pa. June 13, 1986) [Available on WESTLAW, 1986 WL 12800 ]. Rode v. Dellarciprete, 646 F.Supp. 876, 881 (M.D.Pa. 1986). In Cole, the district court was “ 'not persuaded ... that [a man’s] interest in associating with his brother rises to the same level of importance as decisions relating to marriage, childbirth, and childrearing.’” Id. (quoting Cole). The district court also noted that it " ‘found no cases which have held that the relationship between brothers is entitled to this sort of protection and [it] decline[d] to be the first.’ ” Id. (same).

Since the district court’s decision in the present case, we have affirmed by judgment order its Cole decision. Cole v. Allied Servs. for the Handicapped Inc., 815 F.2d 693 (3d Cir.1987) (table).

. Neither the district court nor the majority claim that, as a factual matter, Rode's particular relationship with Hileman is unprotected against state action. Instead, each court has reached only a legal holding: no one may claim that a relationship with his or her "in-law” is protected association under the first and fourteenth amendments.