Court assumed without deciding that adulterous relationship was protected either by right to freedom of association or by right to privacy, at 1375
How later courts described this case
- Court assumed without deciding that adulterous relationship was protected either by right to freedom of association or by right to privacy, at 1375
- “conduct unbecoming an officer” standard gave notice that reckless gunplay was subject to discipline
Written by the judges who cited it.
The opinion
JAMES O. HILL, Circuit Judge,
concurring specially:
I protest the panel’s disingenuous new brand of judicial “restraint,” which is to “avoid” constitutional conclusions by assuming them. By their own admission, the panel’s entire analysis “assumes” that the United States Constitution guarantees the right to commit adultery. Contra, Griswold v. Connecticut, 381 U.S. 479, 498-99 , 85 S.Ct. 1678, 1689 , 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring); Poe v. Ullman, 367 U.S. 497, 553 , 81 S.Ct. 1752, 1782 , 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting). But cf. Doe v. Commonwealth’s Attorney, 425 U.S. 901 , 96 S.Ct. 1489 , 47 L.Ed.2d 751 (1976) (mem.), aff’g 403 F.Supp. 1199 (E.D. Va.1975) (sodomy); Hollenbaugh v. Carnegie Free Library, 436 F.Supp. 1328 (W.D.Pa. 1977) (fornication), aff’d mem., 578 F.2d 1374 (3d Cir.), cert. denied, 439 U.S. 1052 , 99 S.Ct. 734 , 58 L.Ed.2d 713 (1978). But while thus conceding the necessity of reaching the issue, the panel curiously refrains from deciding it, preferring instead merely to intimate their views in dictum.
The panel’s constitutional “assumption” exemplifies the modern judicial hubris that causes federal judges to claim constitutional sanction for their personal views. Once upon a time, “[n]o one would [have] suggested] that the First Amendment permits . adultery.” Roth v. United States, 354 U.S. 476, 512 , 77 S.Ct. 1304, 1323 , 1 L.Ed.2d 1498 (1957) (Douglas, J., dissenting). This was so because, before the Constitution entered the bedroom, adultery was considered “an offense against ■ the marriage relation . . . belongpng] to the class of subjects that each state controls in its own way.” Southern Surety Co. v. Oklahoma, 241 U.S. 582, 586 , 36 S.Ct. 692, 694 , 60 L.Ed. 1187 (1916). The Georgia legislature has acted, declaring adultery to be a misdemeanor criminal offense. Ga. Code Ann. § 26-2009 (Harrison 1978). But alas, this legislation does not comport with the panel’s personal conceptions of modernity, so they “assume” it to be unconstitutional. The burlesque of constitutional liberty continues.
The normative propriety of adulterous sexual relations plainly admits of differing views. To suggest, however, that the Constitution speaks to the matter is but an obvious pretext for judicial legislation. To this I can not and will not assent. The district court held that appellee was fired for engaging in constitutionally protected “association.” That is the holding we review. Contrary to what the panel “assumes,” I believe that this holding was error and would reverse on that basis.