Court Decision

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David Kaplan

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Dec 22, 1995, 3:00:00 AM12/22/95
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My first reaction is Way Cool.

My second reaction is that this could really make an important difference.
It is interesting about how the Appeals court worded its directive to the
lower court. Its emphasis is on the marriage and not the fact that the
women is a lesbian. This I think makes it even more difficult to show a
compelling reason, since it is not based on an individual's status as LGBT
but merely on the extension of a non-officially endorsed personal ceremony.
In addition, I wonder what impact this will have on the Hawaii case, after
all if Georgia can't find a compelling reason, doesn't that improve our
argument in Hawaii?

- David

>
> The federal 11th Circuit Court of Appeals, which covers
>Georgia, Alabama and Florida, has ruled that Robin Joy Shahar, who
>married Francine Greenfield in a Reconstructionist synagogue -- and
>because of that lost a job offer at the Georgia attorney general's
>office -- was denied her constitutional right under the First
>Amendment to an intimate association with another woman.
>
> The appeals court said that Shahar -- she and her partner
>changed their last names from Brown and Greenfield after the
>ceremony -- could not be denied a job solely on the basis of her
>choice of marriage partner. But the court also sent the case back
>to a lower court to see if the state could demonstrate a
>"compelling" governmental interest to override Shahar's rights.
>That is the strictest legal test and in this case would require the
>state -- which has definitely decided to appeal -- to prove that
>work in Attorney General Bowers's office would be disrupted or
>public safety endangered because of Shahar's relationship. (You
>may remember Bowers's name from the infamous 1986 Supreme Court case,
>Bowers v. Hardwick.)
>
> This was the first decision by an appeals court that gay
>people have the same right of intimate association as
>heterosexuals. In finding the relationship deserved highest
>constitutional protection, the appeals court said Shahar's
>"marriage" was highly personal in terms of affection and commitment
>and "inextricably entwined with Shahar's exercise of her religious
>beliefs."
>
> It's interesting that according to the decision, Bowers withdrew
>the job offer after conferring with a "female Jewish staff member"
>who told him that while some rabbis did perform same-sex marriage
>ceremonies, Judaism did not recognize these marriages.
>
>
>-- Richard Grayson
>


Jonathan D. Springer

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Dec 22, 1995, 3:00:00 AM12/22/95
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When did the Circuit Court issue its decision? What's the time frame for
the remand to the trial court?

Richard Grayson

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Dec 22, 1995, 3:00:00 AM12/22/95
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Richard Grayson

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Dec 23, 1995, 3:00:00 AM12/23/95
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On Fri, 22 Dec 1995, Jonathan D. Springer wrote:

>
> When did the Circuit Court issue its decision? What's the time
> frame for the remand to the trial court?

On Fri, 22 Dec 1995, Richard Grayson wrote:

>
> The federal 11th Circuit Court of Appeals, which covers
> Georgia, Alabama and Florida, has ruled that Robin Joy Shahar, who
> married Francine Greenfield in a Reconstructionist synagogue -- and
> because of that lost a job offer at the Georgia attorney general's
> office -- was denied her constitutional right under the First
> Amendment to an intimate association with another woman.

The Circuit Court issued its decision in Shahar v. Bowers on
Wednesday. I don't know what the time frame is. I've since had a
chance to read the decision, which is kind of quirky, since the judge
who wrote the opinion is actually in the minority, because the other
two judges on the panel disagreed with him that the trial court
should also look at Shahar's constitutional rights to equal
protection (with gays/lesbians as a suspect class), free expression
of religion. One judge disagreed that the trial court should apply
strict scrutiny but she said that even under a balancing test, which
she thought was the correct standard, Shahar's right to marry a woman
outweighed any concerns of the Attorney General. All three judges
are Democrats.

Forgive the above complicated legal stuff. Anyone interested in
reading the portion of the decision dealing with the Jewish ceremony
can read ahead.....

-- Richard


.....Shahar did not assert when her job commitment was terminated,
and has not asserted in this suit, that either the ceremony she
planned or the status created by it was a Georgia civil marriage....

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." In P 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," P 7, followed by "a
weekend celebration of Jewish marriage," a "private religious
marriage ceremony," P 8. Plaintiff and her partner considered their
"planned religious marriage" an important event, P 9. Shahar has
disclaimed any claim of "civil" or "legal" marriage pursuant to
Georgia law. Her amended complaint 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 a purely religious nature.

The intimate association Shahar asserts is not based upon false or
sham assertions of religious belief, or hasty decision, or 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 [*13] 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 [*14] 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.

The district judge had before him the depositions of three Jewish
rabbis. Rabbi Kleinbaum, who performed the ceremony, formerly was
associated with the Reconstructionist synagogue in Atlanta and has
become rabbi of a New York synagogue which has the largest number of
gay and lesbian attendants of any synagogue in the United States. A
second rabbi who testified is the president of the National
Organization of Rabbis of Reconstructionist Congregations. A third is
a well-known rabbi from the Conservative Movement of Judaism. Fairly
stated, the depositions do not demonstrate significant differences of
fact but do reveal that Judaism in the United States does not have a
monolithic view of same-sex marriages. The Reconstructionist Movement
accepts the concept of same-sex marriage and [*15] many rabbis
within the Movement perform such marriages. The Reconstructionists
are working on a manual that will help guide rabbis performing same-
sex marriages. Other Movements in Judaism reject same-sex marriages.
Still other Movements are divided in view, with some rabbis
performing such marriages and others declining to do so. But the
critical facts that emerge 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
her job commitment was terminated. But it is relevant to her claim
that her association has religious basis and status. The ceremony was
the culmination of a weekend of religious-centered activities.
Approximately 150 family and friends were invited and approximately
100 attended. Events began Friday evening with the celebration of the
Hebrew Sabbath, which extends from Friday evening to Saturday
evening. The wedding occurred [*16] on Sunday. Essentially the
ceremony followed a traditional ceremony for a heterosexual Jewish
couple except for deletion of the terms "bride" and "groom." It took
place beneath a traditional huppah, or canopy. The couple signed a
traditional Kutubah, or written marriage contract. They exchanged
rings in traditional fashion. 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."

The Attorney General states his position this way:

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.

Brief, p. 35. But he did not submit substantial evidence tending to
show that Shahar "invoked the civil and legal significance of being
"married' to another woman." Shahar and Greenfield have been
companions for several years. They jointly own the house in which
they live, but their joint ownership began several years before this
case arose and, in any event, joint ownership is not limited to
persons married pursuant to Georgia civil law. n3 The couple benefit
from an insurance rate (presumably on household or automobile
insurance) lower than that available to single women. But, under the
undisputed evidence, Shahar talked to the insurance agent, explained
that she was going to undergo a religious ceremony with her female
partner, described and explained the ceremony, and asked if the
company would consider giving them the rate available to married
women, and the company agreed to do so....

The intimate relationship between Shahar and her partner whom she
planned to marry did not involve marriage in a civil, legal sense but
it was inextricably entwined with Shahar's exercise of her religious
beliefs.

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