• Choose a category
• All
• Classic-Fiction

By Root 825 0

Bowers’s interests, it underestimated Shahar’s. The court stated it would protect only Shahar’s status, not her conduct. The question the court seemed to pose was whether Shahar could be gay without getting married. Of course, the answer is yes. But this is the wrong question. It cannot be that individuals committed to equality for gays would ask only whether the conduct in question was necessary to being gay. Gays can survive without many things, including equality. A better question is whether the same conduct is acceptable for straights but not for gays. In Shahar’s case, this double standard clearly existed. When she told Coleman she was getting married, he congratulated her. When he discovered she was getting married to a woman, he lobbied to fire her. In fact, it was wrong to say Shahar was terminated for her conduct rather than her status, as it was her status that cast the same conduct—a religious marriage—in a completely different light. Shahar was not fired for marrying, or for marrying a woman, but for marrying a woman as a woman.

The en banc decision was handed down on May 30, 1997. “I was speechless,” Shahar says, and is, as she recollects the moment, speechless. “The court compared me to a KKK recruiter. I was beside myself.” She had her lawyers press for review by the United States Supreme Court. “I felt I couldn’t have my name associated with a case that drew these conclusions.” The Supreme Court denied review.

When Bowers heard of the decision, he had resigned his position as attorney general to run for governor of Georgia. Although he was the runaway favorite for the Republican nomination, Bowers said he “felt funny about the whole thing.” Voters soon learned why—Bowers confessed to a fifteen-year adulterous relationship with a former department employee. As adultery has long been a crime in Georgia, Bowers was breaking a sex law even as he enforced another one against Michael Hardwick all the way to the Supreme Court. Moreover, he fired Shahar because he said she could not enforce sex laws while breaking them. “Mr. Bowers penalized me for being honest,” Shahar said in an interview with ABC News, “while he rewarded himself for lying.”

After the press trumpeted forth his hypocrisy, Bowers lost the Republican nomination to a candidate with no political experience. Bowers, who now works as a lawyer in private practice, claims he has retired from public life.

Today, Shahar works as an attorney for the city of Atlanta. In that capacity, she has drafted and defended a domestic partnership ordinance for same-sex couples. She and Greenfield recently celebrated their fourteenth anniversary. Even at this distance, the decision weighs on her. I have some understanding of this burden, as I have a friend who was a gays-in-the-military plaintiff. To this day, he cannot bring himself to read the opinion that upheld his separation. As a lawyer in the jurisdiction in which her case was decided, Shahar has not had the luxury of ignoring her decision. She recently had to reread the case as a precedent for a matter her office was handling. “It’s still awful,” she says, “to see my name on that opinion.”

As I explored the law’s treatment of gay covering, I expected to have difficulty finding cases like Shahar’s. Everyone knows the flaunting homosexual will generally get less sympathy than the discreet one. But I did not think courts, which must defend the logic and dignity of their distinctions, would say so.

I was wrong. I found case after case in which courts predicated an entitlement on whether a gay or lesbian individual covered. Individuals whose homosexuality, even if avowed, was “discreet” or “private” kept their jobs or children. Those whose homosexuality was “notorious” or “flagrant” were not so fortunate. Far from being an outlier, Shahar’s case epitomized the rising generation of gay rights cases.

The case law relating to parenting rights shows the critical difference covering can make. Here I focus on a particular form of parenting dispute in which two individuals of different sexes marry and procreate, one