High Court Rejects Appeal of a Lesbian Denied a Job

A closely watched gay-rights case, involving the denial of a job to a lesbian lawyer because of her planned “marriage” to another woman, ended quietly at the Supreme Court Monday.

Without commenting on the merits of the case, the justices dismissed an appeal from Robin Joy Shahar, the summer law clerk whose promised full-time job was withdrawn by Georgia Atty. Gen. Michael J. Bowers in 1991 after he heard that she intended to have her relationship blessed in a small religious ceremony.

She sued, and at one time her case looked as though it would lead to a landmark ruling on discrimination against gay employees. The Supreme Court has yet to rule squarely on whether a public employer’s discrimination based on sexual orientation is constitutional or not.

But Shahar suffered a series of reversals in the lower courts, and the discrimination issue got lost amid a series of other legal claims. When the case reached the high court, her appeal raised a 1st Amendment claim involving a “right of intimate and expressive association.”

As a result, the outcome in Shahar vs. Bowers, 97-751, probably says little about the future of gay rights or the high court’s current view of the issue. Instead, it may show that gay rights have progressed faster than the legal strategy adopted by the gay-rights movement.

Six years ago, Shahar’s lawyers challenged her dismissal mostly on grounds it violated her rights to freedom of speech, freedom of association and freedom of religion.

“We wanted to present the issues on which we thought we had the best chance of winning,” said Ruth E. Harlow of the Lambda Legal Defense Fund in New York, who worked on the case from the start.

At the time, gay-rights lawyers were reluctant to rely on a discrimination argument. The Supreme Court had said the Constitution’s guarantee of “equal protection of the laws” outlawed discrimination based on race, gender or national origin, but it had refused to go further.

Two years ago, however, the justices opened the door to such claims. In Romer vs. Evans, the court struck down an anti-gay Colorado initiative on the grounds it violated the equal-protection clause of the 14th Amendment. It marked the first time gays and lesbians won a discrimination case in the high court.

By then, however, Shahar’s case had already been presented to a U.S. appeals court in Atlanta. She won before a three-judge panel, but then lost on an 8-4 ruling before the full appeals court in May.

Her appeal to the high court urged the justices to rule that public employees have a “fundamental right to association” that protects them in their private lives.

“We’re frustrated and disappointed that this is the end for Robin Shahar’s case, but we’re not reading too much into [it] for the future,” Harlow said.

Shahar is now employed as an attorney for the city of Atlanta.

Bowers is running for the Republican nomination for governor. When he dismissed Shahar, he cited the state law against sodomy and said his “tacit approval of [her] purported marriage” would violate his oath as the state’s chief legal officer to enforce state law. Georgia also has a law against adultery, and last year, Bowers admitted he has carried on a long affair with a woman who is not his wife.

In other action Monday, the court:

* Heard arguments from lawyers for New York and New Jersey, both of whom claim Ellis Island, the embarkation point for millions of immigrants to America. The court will decide by late June whether to endorse a fact-finder’s recommendation to designate most of the island as part of New Jersey, with New York keeping the main building and five surrounding acres.

* Agreed to speed consideration of a case involving the government’s attempt to open up competition in the $100-billion local telephone market. A U.S. appeals court struck down new federal rules. The justices said they would take up the appeals in two weeks.