Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [43]
I focus on Shahar’s claim, made under the Equal Protection Clause, that Bowers discriminated against her on the basis of her orientation. Bowers’s response to this claim reflects a shift toward the covering demand. As the trial court (where facts are established) observed, Bowers contended “he would never exclude a homosexual from employment solely on the basis of his or her sexual orientation.” Bowers here said Shahar did not need to convert to work for him. Bowers also stated that “when he extended plaintiff an offer of employment, he had constructive knowledge of plaintiff’s sexual orientation.” Bowers here alleged he was not requiring Shahar to pass. Bowers’s disavowal of the conversion and passing demands shows how far gay rights had moved—in prior decades, government offices had routinely terminated individuals for homosexuality alone.
Bowers rested his termination of Shahar solely on her failure to cover. Bowers noted that the couple had flaunted their homosexuality by engaging in a commitment ceremony, by changing their names, by living together, and by holding insurance jointly. He viewed this conduct as “activist.” Indeed, in a letter written to the dean of Emory Law School, Bowers hypothesized Shahar had set him up by obtaining a job with the department to pursue her activism. In court, Bowers asserted that employing a flaunter like Shahar would hurt the department’s credibility, making it harder for it to deny same-sex marriage licenses or to enforce sodomy statutes.
Purely as a matter of legal strategy, Bowers was wise to focus on Shahar’s conduct. In the 1996 case of Romer v. Evans, the Supreme Court struck down an antigay amendment to the Colorado state constitution. The Court’s opinion suggested that punishing gays because of their status alone was disfavored, if not impermissible. In isolating Shahar’s flaunting conduct as the reason for terminating her in 1991, Bowers was cannily intuiting the trend of the case law.
The year after Romer, the en banc court rewarded Bowers by adopting his argument. In discussing Bowers’s interests, it accepted his contention that his office would lose credibility if it employed Shahar. The court cited a precedent that upheld a sheriff’s termination of an employee who belonged to the Ku Klux Klan. In discussing Shahar’s interests, the court noted that Bowers was punishing her not for her gay status, but rather for her behavior. It observed that Romer was not applicable as precedent because “Romer is about people’s condition; this case is about a person’s conduct.” Balancing Bowers’s interests against Shahar’s, the court found his interests were greater.
Yet Bowers’s claim that retaining Shahar would compromise the department’s ability to deny same-sex marriage licenses is hard to credit. At no point did Shahar seek to marry Greenfield legally, nor did she agitate for the legalization of same-sex marriage. The Georgia citizenry could not fairly have assumed that Shahar’s private religious ceremony would entitle same-sex couples to a public civil license.
Bowers’s statement that Shahar’s wedding would lessen her ability to enforce sodomy statutes seems superficially stronger. The problem here was that his objection was too broad to justify firing only Shahar. Georgia’s sodomy statute (which has since been struck down) punished “any sexual act involving the sex organs of one person and the mouth or anus of another.” Because the statute prohibited cross-sex as well as same-sex acts, any heterosexual in the department who had ever had oral sex was as compromised as Shahar.
Just as the court overestimated