Robin Joy Shahar v. Michael J. Bowers, Individually and in His Official Capacity as Attorney General of the State of Georgia

GODBOLD, Senior Circuit Judge,

dissenting in which BARKETT, Circuit Judge, and KRAVITCH, Senior Circuit Judge, join:

The court en banc has pretermitted decision of whether Shahar has constitutional rights of intimate association or expressive association. Instead it assumes that she enjoyed such rights and decides that these presumed rights have not been violated because the Attorney General acted reasonably in “revoking [Shahar’s] employment offer.” 1

I would grasp the nettle and hold that in the particular circumstances of this ease Shahar enjoyed rights of intimate association and expressive association and that the Attorney General violated those rights because he did not act reasonably in revoking the agreement made with Shahar. 2

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, or to be entitled to social security benefits through her spouse. She does not question the constitutionality of the Georgia marriage license statute or any provisions of Georgia law that speak in terms of marriage as a ceremony, or as a status, between persons of different sexes. Nor does she question the validity of Georgia principles of common law marriages. As the panel of this Court held in its now-vacated opinion:

*1119 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.”

70 F.3d at 1222. In ¶ 1 of her amended complaint Shahar alleged that she was “fired” because of her participation “in a private religious ceremony of marriage.” The rabbi performed a “Jewish marriage ceremony,” ¶ 7, followed by “a weekend celebration of Jewish marriage,” a “private religious marriage ceremony,” ¶8. Plaintiff and her partner considered their “planned religious marriage” an important event, ¶ 9. In ¶ 10 Shahar disclaimed any claim of civil or legal marriage pursuant to law. That paragraph alleged:

10. Plaintiff does not believe and has at no time represented either that her religious union with her partner carries with it any legal rights or that it constitutes a legal (civil) marriage. The ceremony was of purely religious nature.

The religious and historical roots of the associational rights that Shahar defends were spelled out in the panel opinion. Because that opinion has now been vacated, they deserve to be repeated.

The intimate association Shahar asserts is not based upon false or sham assertions of religious belief, or hasty decision, of overnight conversion. She and her partner grew up in traditional Jewish families. Shahar attended Hebrew school from the third grade. She was bat mitzvahed at age 13 and continued in Hebrew school until she was confirmed at age 16. Greenfield grew up in a conservative, kosher, Jewish home. She went through Jewish training through high school, attended Jewish summer camps, and was involved in Jewish youth groups.

Shahar and Greenfield have been significant participants in the life of their synagogue, located in Atlanta. It is affiliated with the Reconstructionist Movement, one of several movements within Judaism. The synagogue serves gays, lesbians, and heterosexuals. The Reconstructionist Movement is regarded as liberal in some respects but is conservative in others. Shahar has led services at the synagogue and has given several sermons. She and Greenfield often attend together. The proposed ceremony was announced at a service of the synagogue.

Their rabbi, Sharon Kleinbaum, counseled them in eight or nine formal premarital sessions and many informal ones. Rabbi Kleinbaum described the manner in which she satisfied herself of their commitment to the Jewish faith. She discussed with them “the seriousness of their commitment to the Jewish issues as well as to each other, and anything related to wedding ceremonies in general that, as a Rabbi, I would do.” Dep. p. 82. Continuing, she said, “I discussed with them the nature of their home life and the significance of Jewish practices to them and how it was inconceivable to them to do any kind of ceremony that was not a Jewish one.” Id. at 83. Rabbi Kleinbaum considers that the union in which they joined is a public affirmation of their commitment to each other and to the Jewish people, having no legal significance but only personal and religious significance, and that it can be terminated only by the church.

The evidence demonstrates without dispute that same-sex marriage is accepted within the Reconstructionist Movement of Judaism, that Shahar and her partner are committed to that belief, and that, in keeping with their Jewish principles, they carefully and thoughtfully prepared for marriage.

70 F.3d at 1222-23.

The evidence discloses that Judaism in the United States does not have a monolithic view of same-sex marriages. The Reeonstruetionist Movement accepts the concept of same-sex marriage, and many rabbis within the Movement perform such marriages. The Reeonstructionists are working on a manual that will help guide rabbis performing same- *1120 sex marriages. Other movements in Judaism reject same-sex marriages, and still other movements are divided in view, with some • rabbis performing such marriages and others declining to do so. But the critical facts are that Shahar and her partner are lifelong adherents to Judaism and good-faith, dedicated participants in the Reconstructionist Movement; the Reconstructionist Movement is a significant movement within American Judaism; and it regards same-sex marriages as acceptable and desirable in preference to couples living together without marriage.

The actual ceremony between Shahar and Greenfield occurred after the Attorney General terminated the agreement with her, but it is relevant to the fact that her association has religious basis and status. It was the culmination of a weekend of religious-centered activities that began Friday evening with a celebration of the Hebrew Sabbath, which extends from Friday evening to Saturday evening. The wedding occurred on Sunday. Essentially the ceremony followed the traditional ceremony for a heterosexual Jewish couple except for deletion of terms “bride” and “groom.” It took place beneath the traditional canopy. The couple signed the traditional Kutubah, or written marriage contract. They exchanged rings in traditional fashion, and the traditional glass was broken. The traditional seven blessings were given, done in Hebrew and in English. Rabbi Kleinbaum was dressed in traditional garb. She described the event as a “Jewish religious ceremony,” as a “Jewish marriage,” and as a “Jewish wedding.”

In her testimony Rabbi Kleinbaum explained the importance of the family to the survival of the Jewish people and the significance of the Jewish marriage ceremony to the creation of the family unit. Therefore, as she explained, the commitments made by Shahar and her partner through the marriage ceremony were not only commitments to each other but to their congregation and to all of the Jewish people as well.

The Attorney General did not act reasonably. One must focus on what he knew and what he did. Post-event rationalizations of what he might have done, thought up after-wards in ivory towers, will not do. Two statements are central, the termination letter and the Attorney General’s statement of position made to the panel of this court. The termination letter said in part:

This action has become necessary in light of information which has only recently come to my attention relating to a purported marriage between you and another woman. As the chief legal officer of this state inaction on my part would constitute tacit approval of this purported marriage and jeopardize the proper function of this office.

70 F.3d at 1221. The Attorney General’s position before the panel was expressed in a significant three-prong statement:

The Attorney General did not withdraw Shahar’s offer of employment because of her association, religious or otherwise, with other homosexuals or her female partner, but rather because she invoked the civil and legal significance of being “married” to another woman. Shahar is still free to associate with her female partner, as well as other homosexuals, for religious and other purposes.

Id. at 1224, quoting from the Attorney General’s brief. Examine the three prongs. They are: (1) Shahar’s employment was not withdrawn for her association with her partner; (2) It was withdrawn because she invoked the civil and legal status of being married to another woman; (3) She is free to associate with her partner for religious reasons.

As to (1), the undisputed evidence is that in fact the Attorney General did terminate Shahar because of her religious-based association with her partner. As I explain below, he feared that he might be infringing on Shahar’s religious beliefs, but he failed to make reasonable inquiry to determine if he was. As to (3), plainly Shahar was not free to associate with her partner for religious purposes. That is exactly what she had done, and it cost her her employment agreement.

The prong that requires discussion is (2). The termination letter is plainly based on the Attorney General’s conclusion that Shahar was falsely holding herself out as becoming *1121 married in the civil and legal sense, i.e., proposing to engage in a “purported marriage.” In search of evidence of holding out by Shahar this court relies upon her use of the words “marriage” and “wedding.” This implicates differing perceptions of what words mean. In a common law/statutory/traditional sense “marriage” describes a ceremony as a relationship or status between two persons as defined by common law or statute, involving two heterosexual persons, one male and one female. But, as this case tells us, that is not the only and ineluctable meaning. To a person of Shahar’s faith as a Reconstructionist Jew “marriage” refers to the formal Jewish wedding ceremony recommended and carried out pursuant to the participants’ Jewish faith by two persons (including two homosexuals) who have made a lifelong commitment to each other and are bound to each other by the ceremony in a relationship that can be terminated only within their faith and who, by engaging in the ceremony, made a commitment to the Jewish people as well. “Marriage” also refers to the status thereby conveyed upon them. In the eyes of Shahar and her partner they engaged in a Jewish marriage and they are accepted by their faith as married and accordingly they may use the term “marriage” to refer to the ceremonial event and to the status created by it.

This court, in its footnote 1, recognizes the duality of meaning that I have described for “wedding” and “marriage” [and “spouse”]. Throughout its opinion the court attempts to indicate (not always successfully) by quotation marks and limiting words which meaning it is referring to. But the decision of the en banc court is based upon, and approves, the Attorney General’s attribution to these words of only a single meaning, the statutory/common-law/traditional meaning, and his perception that any other meaning is either false or non-existent, i.e., Shahar proposed to engage in a “purported marriage.” The court simply adopts one perception and excludes the other as though it did not exist for Shahar and for others of her faith.

What the Attorney General knew was that Shahar had used the terms “marriage” and “spouse” and “marriage ceremony” in referring to the ceremony she planned and to the status to be created by it. She had used the terms “honeymoon” or “wedding trip” in describing her plans. Within the office there was information that she planned to send, or had sent, invitations to the ceremony and that some staff members were on the invitation list, and other information that, as the Attorney General described it, the planned ceremony would be “a big or church wedding, I don’t remember which.” Possessed of some, or all, of this knowledge, the Attorney General neither saw Shahar nor talked to her but built a Chinese wall around himself and concluded that she had falsely invoked the eivil/statutory/common-law meaning that he attributed to the terms. We know that it occurred to him that assigning a single meaning to “marriage” and “wedding ceremony” might not be correct, for he talked with a female Jewish member of his staff, who told him that the wedding was to be performed by a rabbi from New York who performed homosexual marriages but that “she was not aware of homosexual marriages or gay and lesbian marriages being recognized in Judaism.” At best the response was ambiguous — on the one hand the wedding was to be done by a rabbi, but on the other hand the staff member was not aware that it would be recognized in Judaism. As it turned out, she was correct about the rabbi but incorrect or uninformed about recognition of the marriage.

Since the Attorney General neither saw nor talked with Shahar the decision by this court relies upon information supplied to him by senior staffers who had talked with him. The Attorney General was out of town when the matter first came up. Senior staffers met together several times and discussed their concerns and possible action. The group considered, but rejected, a suggestion that there be a meeting with Shahar to discuss the matter. After the Attorney General returned he met with staffers. He reached the conclusion that the job offer should be withdrawn. In a meeting with staffers the structure of a “termination meeting” with Shahar was worked out. The Attorney General would not be present at the meeting. A designated staffer (accompanied by a witness) was to meet with Shahar, tell her that *1122 the offer to her was withdrawn, and deliver to her the termination letter (in sealed form). The messenger was instructed to make no additional comments and to tell Shahar if she had comments they should be addressed to the Attorney General in writing. The staff member-spokesman prepared a written script of what he would say. Ironically, it concluded: “Thanks again for coming in and have a nice day.” The scenario was played out. Shahar asked to see the Attorney General and was told that he was unavailable.

The Attorney General and his staff acted in ignorance of the religious roots of the association that Shahar planned, the centrality of it to her faith, and the recognition of it by the religion to which she was committed. Staff members could recall no discussion of or inquiry into the religious aspects of the matter. The actions by the Attorney General do not meet the constitutional requirements of reasonableness. 3

If the Attorney General had made reasonable investigation this case might never have arisen. But not only did he make no further investigation, he closed the door to knowledge. It would have been easy to confer with Shahar, or have an assistant do so, and explore her desire to use the term “marriage” and his concern about this usage. If she had then explained that she used the term as recommended and accepted by her faith, the Attorney General, correctly enlightened, might have been satisfied. On the other hand, he might have rejected her explanation as insufficient to ameliorate his concerns. He might have explained to her his fear of possible impact on his office and could have explored with her ways in which she might disseminate knowledge of the religious nature of her intimate association. Wbat we do know is that neither the Attorney General, nor the staff members on whom this court implies that he relied, made inquiry into the religious nature of her plans beyond the ambiguous or mistaken response from the single Jewish staff member of whom the Attorney General inquired. The Attorney General walled himself off, forbade comment or inquiry by staff members who met with Shahar, and terminated the agreement with Shahar on his erroneous perception of the association that she was asserting. Whatever his views about possible adverse effects on his office, he did not act reasonably.

Respectfully, I dissent.

. I assume it would make no difference in this Court’s decision, but the Attorney General did not revoke an “employment offer.” He had offered employment and the offer had been accepted, but the date on which work was to begin was left open. Before that date was fixed the Attorney General canceled the employment agreement.

. The district court and all three members of the panel agreed that Shahar enjoyed protected intimate association rights. The district court did not address expressive association.

. This court also suggests that Shahar held herself out as "married” in the statutoiy/commonlaw/traditional sense because she and her partner were granted (presumably on a homeowners or auto insurance policy) an insurance rate available to married women. But the undisputed evidence is that Shahar talked to her insurance agent, explained the relationship between her and her partner, and asked if the rate was available to them. The insurance company afforded them that rate. This was no false "holding out,” no pretext of marriage in the legal sense. Indeed, it was the contraiy. Shahar told the agent the facts of her relationship. If this incident tends to prove anything it is that the insurance company, possessed of facts, recognized and accepted the duality of meaning of "marriage” and for its purposes accepted that Shahar was a married woman.

This court also refers to joint ownership of a home as "holding out.” Under Georgia law joint ownership does not require marital status. O.C.G.A. §§ 44-6-120 and 44-6-190.

It is unclear when the insurance matter occurred. Joint ownership of the house existed before this case arose. It is clear that the Attorney General did not rely on either of these factors or even knew of them.