Lewell Marcum v. James McWhorter as Interim Sheriff of Pulaski County, Kentucky

CLAY, Circuit Judge,

concurring.

I do not agree with the majority opinion’s holding that because a relationship can be labeled “adulterous,” it should never receive constitutional protection; but because I believe that Plaintiff fails to show that his relationship constitutes the kind of relationship which the Supreme Court has heretofore afforded constitutional protection, I concur in the judgment.

As the majority opinion points out, the Supreme Court has held that the Constitution protects the right to form and maintain certain intimate personal relationships. See Roberts v. United States Jaycees, 468 U.S. 609, 617-18 , 104 S.Ct. 3244 , 82 L.Ed.2d 462 (1984) (explaining that in certain instances, the Constitution protects the right to form and maintain certain intimate relationships against undue and unjustified state intrusion). In attempting to demonstrate the types of relationships warranting constitutional protection, the Court has looked to those “personal affiliations” that attend to the “creation and sustenance of a family” such as childbirth, raising and educating children and living with relatives. Id. at 619 , 104 S.Ct. 3244 . The Court explained that “by their nature” these relationships “involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of-one’s life.” Id. at 620 , 104 S.Ct. 3244 . Such relationships are constitutionally protected because of the “realization” that. individuals draw emotional enrichment from those with whom they share close ties. Id. at 619 , 104 S.Ct. 3244 . Constitutional protection therefore “safeguards the ability»... to define, one’s identity that is central to any concept of liberty.” Id. There is a broad spectrum of relationships between those that are most likely entitled to constitutional protection from state interference, such as close family relationships, and those that are not. Id. at 620 , 104 S.Ct. 3244 . To determine whether a ■ particular association is sufficiently personal or private to warrant constitutional protection, courts may consider size, purpose, selectivity, and whether others are excluded from the critical aspects of the relationship. See Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U,S. 537, 546, 107 S.Ct. 1940 , 95 L.Ed.2d 474 (1987); see also Roberts, 468 U.S. at 620 , 104 S.Ct. 3244 (noting that courts may also consider “other characteristics that in a particular case may be pertinent”).

The majority opinion holds that the “adulterous nature of the relationship [in this case] does not portray a relationship of the most intimate variety afforded protection under the Constitution.” Broadly construed, this holding appears to indicate that regardless of any other factors that might be considered in assessing whether a relationship should be afforded constitutional protection, the only relevant factor in determining whether a relationship should be afforded constitutional protection, in a case like the present, is whether the relationship can be deemed adulterous. *644 I believe that while relevant in making such a determination, the adulterous nature of the relationship alone should not be dispositive. Indeed, precedent from this circuit demonstrates as much.

In Briggs v. N. Muskegon Police Dep't, 563 F.Supp. 585 (W.D.Mich.1983), aff'd mem., 746 F.2d 1475 (6th Cir.1984), cert denied, 473 U.S. 909 , 105 S.Ct. 3535 , 87 L.Ed.2d 659 (1985), the district court, after a bench trial, found that defendants violated a plaintiffs constitutional right to privacy by terminating and refusing to reinstate him as a police officer for his cohabitation with a woman while they were both married to other people. 563 F.Supp. at 587 . The plaintiff contended that the defendants’ acts had intruded on his constitutionally guaranteed rights of privacy and association, and the district court agreed. Id. at 587 .

Although Briggs has no precedential value because this Court issued no published opinion, we nevertheless affirmed the judgment of the district court, which found that the adulterous relationship involved in that case warranted constitutional protection. In the dissent from the denial of certiorari in Briggs , Justice White noted that the circuits were divided over whether extra-marital sexual activity, including adulterous activity, is constitutionally protected in a way that forbids public employers from disciplining employees who engage in such activity. Briggs, 473 U.S. at 910 , 105 S.Ct. 3535 . (White, J. dissenting). Justice White would have granted certio-rari inasmuch as the case would have given the Court an opportunity to consider “the contours of the right of privacy afforded individuals for sexual matters.” Id.

The majority opinion correctly notes that the Supreme Court has not restricted the constitutional right of intimate association to relationships among family members. See Rotary, 481 U.S. at 545 , 107 S.Ct. 1940 . Further, the Supreme Court has rejected the argument that although public employment may be denied altogether, such employment may be subject to any condition at all no matter how unreasonable. See, e.g., Pickering v. Bd. of Educ. of Township High School Dist., 391 U.S. 563, 568 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968) (citing Keyishian v. Board of Regents, 385 U.S. 589 , 87 S.Ct. 675 , 17 L.Ed.2d 629 (1967)). For a state to dismiss an individual solely because the relationship in which he or she is involved might be labeled adulterous, may be unreasonable under some circumstances. For instance, under the majority opinion’s approach, even a long-term relationship in which the participants have resided together, raised children, and lived essentially as a married couple could be beyond the pale of constitutional protection where one or both individuals, for whatever reason, has never legally terminated a prior marriage, and hence could not remarry. This would hold true under the majority’s reasoning despite the fact that such a relationship might certainly “presuppose deep attachments and commitments” in which the individuals “share[ ] not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of [their lives].” Roberts, 468 U.S. at 619-20 , 104 S.Ct. 3244 .

The majority opinion relies heavily on Bowers v. Hardwick, 478 U.S. 186 , 106 S.Ct. 2841 , 92 L.Ed.2d 140 (1986), and notes that the Supreme Court has rejected the proposition that “any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.” Id. at 191 , 106 S.Ct. 2841 . In Bowers the Supreme Court rejected a constitutional challenge to Georgia’s sodomy statute. In that case, the Supreme Court explained that although not expressed in the text of the Constitution, the Court has *645 recognized certain privacy rights under the due process clause of the Fourteenth Amendment. Id. at 193 , 106 S.Ct. 2841 . Focusing primarily on the sexual act at issue, and giving little or no attention to any other aspects of the relationship between the participants of the sexual act, the Court refused to extend a fundamental right to homosexuals to engage in consensual sodomy. Id. at 192 , 106 S.Ct. 2841 . The district court below, and apparently the majority, cite Bowers because therein the Supreme Court would not take an expansive view and rejected an invitation to discover new fundamental rights imbedded in the due process clause, i.e., the right to engage in homosexual sodomy. The argument therefore goes that this Court should not expand the right of intimate association to include relationships that might be considered adulterous. However, despite Bowers , “the Supreme Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits a state (or state actor) from regulating the private consensual sexual behavior of adults.” Hughes v. City of N. Olmsted, 93 F.3d 238, 241-42 (6th Cir.1996). Further, in light of the kind of reasoning suggested by Briggs, it cannot be said that a relationship that might be considered adulterous ipso facto strips the relationship of all constitutional protection. Bowers does not require that we give dispositive weight entirely to one factor — the adulterous nature of the relationship — and ignore all other factors the Court set forth in Roberts and expounded upon in Rotary (decided after Bowers) in assessing whether a certain relationship should be afforded constitutional protection.

Whatever the perceived reach of Bowers , a majority of the Court since Bowers has not adopted the position that no matter how unreasonable, any government action taken against consenting adults, whose relationships may involve otherwise permissibly state proscribed sexual activity, such as homosexual sodomy, will survive constitutional scrutiny because of the nature of the adult’s sexual activity alone. See, e.g., Romer v. Evans, 517 U.S. 620, 630 , 116 S.Ct. 1620 , 134 L.Ed.2d 855 (1996) (holding violative of equal protection a state constitutional amendment that, among other things, repealed existing law that banned discrimination against homosexuals; and noting without reference to Bowers that reach, of amendment could potentially subject this group to arbitrary discrimination). But see id. at 640-41 , 116 S.Ct. 1620 (contending that state amendment depriving homosexuals of rights was rational inasmuch as Court had held in Bowers that from the inception of the country homosexual conduct was a crime) (Scalia, J., dissenting). 1

In any event, I agree with the majority opinion that Plaintiff fails to show that an assessment of the objective factors of his relationship places it at the end of the spectrum with those relationships that the Supreme Court has found warrant constitutional protection under the First Amendment’s right of intimate association. Al *646 though Plaintiffs relationship with Rena Abbott involved only two individuals and was sexual in nature, the record does not support the finding that this relationship was entered into and maintained to form deep personal commitments and attachments. Roberts, 468 U.S. at 619-20 , 104 S.Ct. 3244 . Rather, in assessing the relationship’s purpose, not only were both Plaintiff and Abbott married to other people, but Abbott testified that the purpose of their moving in together was merely intended to be a “roommate type of arrangement.” Further, Plaintiff cannot claim that others truly were excluded from the critical aspects of the relationship inasmuch as Abbott left the relationship and the residence she shared with Plaintiff within approximately one month so that she could reconcile with her own husband. Unlike the majority opinion, I believe that the short duration of the relationship factors into whether it should be afforded constitutional protection. Id. at 620 , 104 S.Ct. 3244 .

Plaintiffs relationship also differs markedly from the type of relationship at issue in Briggs, where this Court summarily affirmed the district court’s finding that the plaintiffs discharge violated his rights to privacy and intimate association. Plaintiff cannot deny on this record that his relationship with Abbott became a public matter and was intertwined with and affected his job performance. Indeed, we have noted that “[t]he significance of Briggs lies in the fact that the officer in that case was dismissed solely because of his living status, without any reference as to how that status could have affected his performance as an officer.” Hughes, 93 F.3d at 242 . Plaintiff met Abbott on the job, where she served as a confidential informant; he was reprimanded for the time he spent with her while on duty; and on at least one occasion shortly before his discharge had a public altercation with his adult daughter over the relationship at his workplace. Cf. Briggs, 563 F.Supp. at 587 (noting that plaintiff had performed his duties satisfactorily up until the time of his suspension, and that plaintiff, himself, brought his living arrangements to the attention of his superior). 2

The Supreme Court has held that there are limits on the types of relationships that might warrant constitutional protection. Roberts, 468 U.S. at 619 , 104 S.Ct. 3244 . Although such protection is extended beyond familial relationships, thus far the Court has nevertheless indicated that the relationships most likely to warrant such protection are those that involve “deep attachments and commitments ” in which one shares, among other things, those “personal aspects of one’s life.” Id. at 619-20 , 104 S.Ct. 3244 . Because I find that the objective factors that the Supreme Court has instructed courts to employ in determining whether relationships should be afforded constitutional protection weigh against finding Plaintiffs relationship warrants such protection in the instant case, I concur in the judgment of the Court.

. Nevertheless, the adulterous nature of a relationship is a factor that should be considered in determining whether the relationship should be afforded constitutional protection. The Supreme Court has held that a broad range of relationships exist "that may make greater or lesser claims to constitutional protection from particular incursions by the State." Roberts, 468 U.S. at 620 , 104 S.Ct. 3244 . Those relationships the Court has most readily afforded protection generally include those pertaining to marriage and family. Id. at 619 , 104 S.Ct. 3244 . As at least one court in this circuit has noted, "adulterous conduct is the very antithesis of marriage and family.” Mercure v. Van Buren Township, 81 F.Supp.2d 814, 823 (E.D.Mich.2000) (citation omitted).

. This is not to express an opinion on the ultimate reason for Plaintiffs discharge, as this may be disputed. This is simply to point out that Plaintiff cannot claim on this record that his relationship was a purely private affair that did not affect his duties.