In the past, I have written about my belief that public employees’ rights to sexual privacy should enjoy the same protection afforded First Amendment rights to speech and religion.

So far, courts have been unreceptive to my claims that post-Lawrence v. Texas, the right to sexual privacy represents a heightened constitutional right which should lead only to employer interference with that right if the employer has a legitimate and substantial justification for so doing.  The most recent example of courts’ lack of receptivity to this argument comes from the Eleventh Circuit yesterday. 

Ross Runkel provides the following summary of the 11th Circuit case of Starling v. Board of County Commissioners (11th Cir 04/06/2010), in which the court upheld a public employee’s demotion where the firefighter had been caught in an extramarital affair:

Starling sued the employer under 42 USC Section 1983 for violation of his First Amendment right to intimate association. The trial court granted the employer’s motion for summary judgment. The 11th Circuit affirmed.

The court framed the question in the appeal as whether the employer violated a firefighter’s First Amendment right to intimate association by demoting him for an extramarital affair with one of his subordinates. The court concluded that the public employer’s interest in discouraging intimate association between supervisors and subordinates was so critical to the effective functioning of its fire department that it outweighed Starling’s interest in his relationship with the subordinate in the workplace. The court assumed arguendo that Starling’s right to intimate, extramarital association with a subordinate was fundamental, but did not address whether the First Amendment protected intimate, extramarital  association.

I have many issues with not only the conclusion of the court, but also, perhaps more fundamentally, about the way the legal issue is framed (and I’m not sure if this is the fault of the plaintiff’s attorney or the court):

1.    I do not think there is such a thing as a claim to intimate association under the First Amendment.  I read Roberts v. U.S. Jaycees as finding an expressive association right under the First Amendment, and an intimate association right under the substantive due process provisions of the Fourteenth Amendment.  I am aware of Stanley v. Georgia and the right to have pornography in one’s home, but I submit that is not an intimate association case at all.

2.  Even if Roberts‘ location of the intimate association claim is properly in the Fourteenth Amendment, I do not think that a public employee plaintiff would get much constitutional protection under this precedent. Courts have been reluctant to give heightened protected to intimate association claims in the 25 years since the Roberts case was decided.

3.  I would have argued that the right here is one of sexual privacy under Lawrence v. Texas.  I would have also argued that although it is unclear as to what the appropriate standard of scrutiny is in Lawrence cases, at the very least some form of heightened scrutiny is involved.  Indeed, I would compare Lawrence to the Pickering line of First Amendment cases and ask the court to conduct a balance of the employee’s sexual privacy interests against the rights of the public employer to run an efficient government workplace.  Unless the employer had a legitimate and substantial justification for demoting/firing the employee, I would find that sexual privacy interest had been violated by the public employer’s actions.  I do not believe that all cases of sex between supervisors and subordinates automatically meet this standard but we would need to inquire more into the nature of the relationship.

4. What is striking about this case is that the court assumes arguendo that there is a fundamental right to intimate association, but that such fundamental right is outweighed by the efficiency interests of the employer.  If indeed the intimate association right, wherever found, is a fundamental one, I would think the narrowly tailored means to meet a compelling state interest standard would be involved and a mere government interest in efficiency would hardly be enough to permit the demotion in these circumstances. Note also that the court affirms a summary judgment, holding that there is no genuine issues of material fact and the case can be decided as a matter of law.  But my approach in #3 suggests many important disputed facts need to be determined by a fact-finder.