Robin Joy Shahar v. Michael J. Bowers, Individually and in His Official Capacity as Attorney General of the State of Georgia

114 F.3d 1097, 12 I.E.R. Cas. (BNA) 1582, 1997 U.S. App. LEXIS 13069, 70 Empl. Prac. Dec. (CCH) 44,739, 1997 WL 285973

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 30, 1997
• Docket: 93-9345
• Status: Published

Opinions

EDMONDSON, Circuit Judge:

In this government-employment case, Plaintiff-Appellant contends that the Attorney General of the State of Georgia violated her federal constitutional rights by revoking an employment offer because of her purported “marriage”¹ to another woman. The district court concluded that Plaintiff’s rights had not been violated. We affirm.

Given the culture and traditions of the Nation, considerable doubt exists that Plaintiff has a constitutionally protected federal right to be “married” to another woman: the question about the right of intimate association. See generally F/W PBS, Inc. v. City of Dallas, 493 U.S. 215, 237-39, 110 S.Ct. 596, 611, 107 L.Ed.2d 603 (1990); Roberts v. United States Jaycees, 468 U.S. 609, 618-19, 104 S.Ct. 3244, 3250, 82 L.Ed.2d 462 (1984). Given especially that Plaintiffs religion requires a woman neither to “marry” another female — even in the case of lesbian couples— nor to marry at all, considerable doubt also exists that she has a constitutionally protected federal right to be “married” to another woman to engage in her religion: the question about the right of expressive association. See generally Salvation Army v. Dept. of Community Affairs of State of N.J., 919 F.2d 183, 198-200 (3d Cir.1990).² See also Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 449-51, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 534 (1988); Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 883-85, 110 S.Ct. 1595, 1603, 108 L.Ed.2d 876 (1990); Bowen v. Roy, 476 U.S. 693, 699-701, 106 S.Ct. 2147, 2152, 90 L.Ed.2d 735 (1986) (plurality opinion) (“Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family”) (emphasis in original).³

Because even a favorable decision on these constitutional questions would entitle Plaintiff to no relief in this case, powerful considerations of judicial restraint call upon us not to decide these constitutional issues. See e.g., Lyng, 485 U.S. at 443-46, 108 S.Ct. at 1323 (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”); Employment Div., Dept. of Human Res. v. Smith, 485 U.S. 660, 673-74, 108 S.Ct. 1444, 1452, 99 L.Ed.2d 753 (1988); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293-95, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152 (1982) (“[T]his self-imposed limitation on the exercise of this Court’s jurisdiction has an importance to the institution that transcends the significance of particular controversies.”) So, today we do stop short of making a final decision about such claimed rights. Instead, we assume (for the sake of argument only) that Plaintiff has these rights; but we conclude that the Attorney General’s act — as an employer — was still lawful.

I.

The facts are not much in dispute; but we accept Plaintiff’s view when there is uncertainty. Plaintiff Robin Joy Shahar is a woman who has “married” another woman in a ceremony performed by a rabbi within the Reconstruetionist Movement of Judaism. According to Shahar, though the State of Georgia does not recognize her “marriage” and she does not claim that the “marriage” has legal effect, she and her partner consider themselves to be “married.”

Since August 1981, Defendant-Appellee Michael J. Bowers has been the Attorney General of the State of Georgia, a statewide elective office. He has been elected to the office four times. As the Attorney General, Bowers is the chief legal officer of the State of Georgia and head of the Georgia Department of Law (the “Department”). His responsibilities include enforcing the laws of the State by acting as a prosecutor in certain criminal actions; conducting investigations; representing Georgia, its agencies and officials in all civil litigation (including habeas corpus matters); and providing legal advice (including advice on the proper interpretation of Georgia law) to Georgia’s executive branch.

While a law student, Shahar spent the summer of 1990 as a law clerk with the Department.⁴ In September 1990, the Attorney General offered Shahar the position of Staff Attorney when she graduated from law school.⁵ Shahar accepted the offer and was scheduled to begin work in September 1991.

In the summer of 1990, Shahar began making plans for her “wedding.” Her rabbi announced the expected “wedding” to the congregation at Shahar’s synagogue in Atlanta. Shahar and her partner invited approximately 250 people, including two Department employees, to the “wedding.” The written invitations characterized the ceremony as a “Jewish, lesbian-feminist, out-door wedding.” The ceremony took place in a public park in South Carolina in June 1991.

In November 1990, Shahar filled out the required application for a Staff Attorney position. In response to the question on “marital status,” Shahar indicated that she was “engaged.” She altered “spouse’s name” to read “future spouse’s name” and filled in her partner’s name: “Francine M. Greenfield.” In response to the question “Do any of your relatives work for the State of Georgia?” she filled in the name of her partner as follows: “Francine Greenfield, future spouse.”⁶

Sometime in the spring of 1991, Shahar and her partner were working on their “wedding” invitations at an Atlanta restaurant. While there, they ran into Elizabeth Rowe and Susan Rutherford. Rowe was employed by the Department as a paralegal, Rutherford as an attorney. Rowe was invited to, and did attend, Shahar’s ceremony. The four women had a brief conversation, which included some discussion of the “wedding” preparations.

In June 1991, Shahar told Deputy Attorney General Robert Coleman that she was getting married at the end of July, changing her last name, taking a trip to Greece and, accordingly, would not be starting work with the Department until mid-to-late September. At this point, Shahar did not say that she was “marrying” another woman. Senior Assistant Attorney General Jeffrey Milsteen, who had been co-chair of the summer clerk committee, was in Coleman’s office at the time and heard Coleman congratulate Shahar. Milsteen later mentioned to Rutherford that Shahar was getting married. Rutherford then told Milsteen that Shahar was planning on “marrying” another woman. This revelation caused a stir.

Senior aides to the Attorney General became concerned about what they viewed as potential problems in the office resulting from the Department’s employment of a Staff Attorney who purported to be part of a same-sex “marriage.” As the Attorney General was out of the office that week, the five aides held several meetings among themselves to discuss the situation.

Upon the Attorney General’s return to the office, he was informed of the situation. He held discussions with the senior aides, as well as a few other lawyers within the Department. After much discussion, the Attorney General decided, with the advice of his senior lawyers, to withdraw Shahar’s job offer. In July 1991, he did so in writing. The pertinent letter stated that the withdrawal of Shahar’s offer:

has become necessary in light of information which has only recently come to my attention relating to a purported marriage between you and another woman. As chief legal officer of this state, inaction on my part would constitute tacit approval of this purported marriage and jeopardize the proper functioning of this office.

The Attorney General and his staff have also indicated (in depositions taken in the present action) that, after weighing the facts and relevant considerations, they concluded that Shahar’s same-sex “marriage” would create the appearance of conflicting interpretations of Georgia law and affect public credibility about the Department’s interpretations; interfere with the Department’s ability to handle controversial matters; interfere with the Department’s ability to enforce Georgia’s sodomy law; and, in general, create difficulties maintaining the supportive working relationship among the office lawyers that is necessary for the proper functioning of the Department. Also, following her decision to participate in a controversial same-sex “wedding,” the Attorney General and his staff had serious doubts about the quality of Shahar’s judgment in general.

Shahar brought the present action against the Attorney General, individually and in his official capacity, seeking both damages and injunctive relief (including “reinstatement”). She said revoking her offer violated her free exercise and free association rights and her rights to equal protection and substantive due process.⁷

Bowers moved for summary judgment on all causes of action. On that same day, Shahar moved for partial summary judgment.⁸ The district court granted the Attorney General’s motion for summary judgment and denied Shahar’s.

II.

Even when we assume, for argument’s sake, that either the right to intimate association or the right to expressive association or both are present, we know they are not absolute. Cf. Board of Comm’rs, Wabaunsee Cty. v. Umbehr, — U.S. -, -, 116 S.Ct. 2342, 2347, 135 L.Ed.2d 843 (1996) (“While protecting First Amendment freedoms, we have, however, acknowledged that the First Amendment does not create property or tenure rights, and does not guarantee absolute freedom of speech.”)⁹ Georgia and its elected Attorney General also have rights and duties which must be taken into account, especially where (as here) the State is acting as employer. See e.g., Rankin v. McPherson, 483 U.S. 378, 384-86, 107 S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987) (“[P]ublic employers are employers, concerned with the efficient function of their operations; review of every personnel decision made by a public employer could, in the long run, hamper the performance of public functions.”). We also know that because the government’s role as employer is different from its role as sovereign, we review its acts differently in the different contexts. See Waters v. Churchill, 511 U.S. 661, 675-76, 114 S.Ct. 1878, 1888, 128 L.Ed.2d 686 (1994) (plurality opinion) (“The key to First Amendment analysis of government employment decisions ... is this: The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a signifieant one when it acts as employer.”) In reviewing Shahar’s claim, we stress that this case is about the government acting as employer.

A.

Shahar argues that we must review the withdrawal of her job offer under strict scrutiny. The only precedent to which Shahar refers us for the proposition that strict scrutiny is to be applied to the government as employer is Dike v. School Board, 650 F.2d 783 (5th Cir. Unit B 1981). In Dike, the Fifth Circuit — our predecessor — implied that a school district’s refusal to allow a teacher to breast-feed her child on her lunch hour must withstand strict scrutiny. Id. at 787 (“[T]he school board may establish by appropriate pleading and proof that its regulations ... as applied to teachers who breastfeed their children during their non-duty time, further sufficiently important state interests and are closely tailored to effectuate only those interests.”).¹⁰ To the extent that Dike might be interpreted as requiring strict scrutiny review of a government employee’s freedom of intimate association claim, it misstates the appropriate standard; and we overrule it now.¹¹

We also note that the Supreme Court recently rejected a similar argument in an analogous case. In Board of Comm’rs, Wabaunsee Cty. v. Umbehr, — U.S.-, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996), the Court held that government contractors are protected from termination or failure to renew their contracts for exercising their free speech rights and that the Pickering balancing test¹² is the appropriate standard for determining whether a First Amendment violation has occurred.¹³ The Court specifically rejected the contractor’s argument that “on proof of viewpoint-based retaliation for contractors’ political speech, the government should be required to justify its actions as narrowly tailored to serve a compelling state interest,” id. at-, 116 S.Ct. at 2349, and wrote as follows:

[Contractor] is correct that if the Board had exercised sovereign power against him as a citizen in response to his political speech, it would be required to demonstrate that its action was narrowly tailored to serve a compelling governmental interest. But in this case, as in government employment cases, the Board exercised contractual power, and its interests as a public service provider, including its interest in being free from intensive judicial supervision of its daily management functions, are potentially indicated. Deference is therefore due to the government’s reasonable assessment of its interest as contractor.

Id. at-, 116 S.Ct. at 2349.

We conclude that the appropriate test for evaluating the constitutional implications of the State of Georgia’s decision — as an employer — to withdraw Shahar’s job offer based on her “marriage” is the same test as the test for evaluating the constitutional implications of a government employer’s decision based on an employee’s exercise of her right to free speech, that is, the Pickering balancing test.¹⁴

B.

We have previously pointed out that government employees who have access to their employer’s confidences or who act as spokespersons for their employers, as well as those employees with some policy-making role, are in a special class of employees and might seldom prevail under the First Amendment in keeping their jobs when they conflict with their employers. See Bates v. Hunt, 3 F.3d 374, 378 (11th Cir.1993); Sims v. Metropolitan Dads County, 972 F.2d 1230, 1237-38 (11th Cir.1992). See also Kinsey v. Salado Independent School Dist., 950 F.2d 988 (5th Cir.1992) (en banc). See generally Pickering v. Board of Ed., 391 U.S. 563, 570 n. 3, 88 S.Ct. 1731, 1735 n. 3, 20 L.Ed.2d 811 (1968).

Put differently, the government employer’s interest in staffing its offices with persons the employer fully trusts is given great weight when the pertinent employee helps make policy, handles confidential information or must speak or act — for others to see — on the employer’s behalf. See Bates, 3 F.3d at 378; Sims, 972 F.2d at 1237-38. Staff Attorneys inherently do (or must be ready to do) important things, which require the capacity to exercise good sense and discretion (as the Attorney General, using his considered judgment, defines those qualities): advise about policy; have access to confidential information (for example, litigation strategies); speak, write and act on behalf of the Attorney General and for the State.

In a case such as this one, the employee faces a difficult situation. In fact, we know of no federal appellate decision in which a subordinate prosecutor, state’s attorney or like lawyer has prevailed in keeping his job over the chief lawyer’s objection. See e.g., Connick v. Myers, 461 U.S. 138, 154-56, 103 S.Ct. 1684, 1694, 75 L.Ed.2d 708 (1983); Livas v. Petka, 711 F.2d 798, 801 (7th Cir.1983) (“One of the problems faced by a prosecutor such as Petka, however, is that his policies are implemented by subordinates. ... That Petka lost confidence in Livas, for whatever reason, is therefore sufficient justification for Livas’ dismissal.”).¹⁵ We conclude that the Attorney General — who is an elected official with great duties and with no job security except that which might come from his office’s performing well — may properly limit the lawyers on his professional staff to persons in whom he has trust.

As both parties acknowledge, this ease arises against the backdrop of an ongoing controversy in Georgia about homosexual sodomy, homosexual marriages, and other related issues, including a sodomy prosecution — in which the Attorney General’s staff was engaged — resulting in the well-known Supreme Court decision in Bowers v. Hard-wick, 478 U.S. 186, 190-92, 106 S.Ct. 2841, 2844, 92 L.Ed.2d 140 (1986) (criminal prosecution of homosexual sodomy does not violate substantive due process).¹⁶ When the Attorney General viewed Shahar’s decision to “wed” openly — complete with changing her name — another woman (in a large “wedding”) against this background of ongoing controversy, he saw her acts as having a realistic likelihood to affect her (and, therefore, the Department’s) credibility, to interfere with the Department’s ability to handle certain kinds of controversial matters (such as claims to same-sex marriage licenses, homosexual parental rights, employee benefits, insurance coverage of “domestic partners”), to interfere with the Department’s efforts to enforce Georgia’s laws against homosexual sodomy,¹⁷ and to create other difficulties within the Department which would be likely to harm the public perception of the Department. See Board of Comm’rs, Wabaunsee Cty. v. Umbehr, — U.S. -, -, 116 S.Ct. 2342, 2347, 135 L.Ed.2d 843 (1996) (“The government needs to be free to terminate both employees and contractors ... to improve the efficiency, efficacy and responsiveness of service to the public, ...”).

In addition, because of Shahar’s decision to participate in such a controversial same-sex “wedding” and “marriage” and the fact that she seemingly did not appreciate the importance of appearances and the need to avoid bringing “controversy” to the Department, the Attorney General lost confidence in her ability to make good judgments for the Department.

Whatever our individual, personal estimates might be, we — as we observe throughout this opinion — cannot say that the Attorney General’s worries and view of the circumstances that led him to take the adverse personnel action against Shahar are beyond the broad range of reasonable assessments of the facts.¹⁸ See Waters v. Churchill, 511 U.S. 661, 673-81, 114 S.Ct. 1878, 1887-90, 128 L.Ed.2d 686 (1994) (plurality opinion) (for Pickering balance, facts to be weighed on government’s side merely need to be reasonable view of facts or reasonable predictions; manager’s view of circumstances is entitled to substantial weight).

C.

. We must decide whether Shahar’s interests outweigh the disruption and other harm the Attorney General believes her employment could cause. Pickering balancing is never a precise mathematical process: it is a method of analysis by which a court compares the relative values of the things before it. A person often knows that “x” outweighs “y” even without first determining exactly what either “x” or “y” weighs. And it is this common experience that illustrates the workings of a Pickering balance.¹⁹

To decide this case, we are willing to accord Shahar’s claimed assoeiational rights (which we have assumed to exist) substantial weight. But, we know that the weight due intimate assoeiational rights, such as, those involved in even a state-authorized marriage, can be overcome by a government employer’s interest in maintaining the effective functioning of his office. See McCabe v. Sharrett, 12 F.3d 1558, 1569-1570 (11th Cir.1994) (upholding transfer of sheriffs secretary to less desirable job based on her marriage to an officer in sheriffs department).

In weighing her interest in her associational rights, Shahar asks us also to consider the “non-employment related context” of her “wedding” and “marriage” and that “[s]he took no action to transform her intimate association into a public or political statement.” In addition, Shahar says that we should take into account that she has affirmatively disavowed a right to benefits from the Department based on her “marriage.”

To the extent that Shahar disclaims benefits bestowed by the State based on marriage, she is merely acknowledging what is undisputed, that Georgia law does not and has not recognized homosexual marriage. See O.C.G.A. §§ 19-3-1; 19-3-3.1; City of Atlanta v. McKinney, 265 Ga. 161, 454 S.E.2d 517, 519 (1995) (“We hold that the city ... exceeded its authority in extending employee benefits to persons who are not dependents under state law.”); Georgia Osteopathic Hosp., Inc. v. O’Neal, 198 Ga.App. 770, 403 S.E.2d 235, 243 (1991) (“In order for a common-law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement.”). We fail to see how that technical acknowledgment counts for much in the balance.

If Shahar is arguing that she does not hold herself out as “married,” the undisputed facts are to the contrary. Department employees, among many others, were invited to a “Jewish, lesbian-feminist, out-door wedding” which included exchanging wedding rings: the wearing of a wedding ring is an outward sign of having entered into marriage. Shahar listed her “marital status” on her employment application as “engaged” and indicated that her future spouse was a woman. She and her partner have both legally changed their family name to Shahar by filing a name change petition with the Fulton County Superior Court.²⁰ They sought and received the married rate on their insurance. And, they, together, own the house in which they cohabit. These things were not done secretly, but openly.

Even if Shahar is not married to another woman, she, for appearance purposes, might as well be. We suppose that Shahar could have done more to “transform” her intimate relationship into a public statement. But after (as she says) “sanctifying” the relationship with a large “wedding” ceremony by which she became — and remains for all to see — “married,” she has done enough to warrant the Attorney General’s concern.²¹ He could conclude that her acts would give rise to a likelihood of confusion in the minds of members of the public: confusion about her marital status and about his attitude on same-sex marriage and related issues.

As for disruption within the Department, Shahar argues that we may discount the potential harm based on (what she sees as) the weakness of the Attorney General’s predictions. Shahar overstates the Attorney General’s “evidentiary burden.” See Waters, supra at 675-77, 114 S.Ct. at 1888 (“Government employers should be allowed to use personnel procedures that differ from the evidentiary rules used by courts, without fear that these differences will lead to liability.”)

In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Supreme Court upheld the termination of an assistant district attorney based on her exercise of her free speech rights. In so doing, the Court noted the close working relationship involved in a district attorney’s office (which we think is similar to the Department) and held as follows:

When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the. destruction of working relationships is manifest before taking action.

Id. at 150-52, 103 S.Ct. at 1692. See also Waters, 511 U.S. at 673-75, 114 S.Ct. at 1887 (“[W]e have given substantial weight to government employers’ reasonable predictions of disruption, ... even though when the gov-eminent is acting as sovereign our review of legislative predictions of harm is considerably less deferential.”)

As we have already written, the Attorney General’s worry about his office being involved in litigation in which Shahar’s special personal interest might appear to be in conflict with the State’s position has been borne out in fact. See supra, note 16. This worry is not unreasonable. In addition, the Department, when the job offer was withdrawn, had already engaged in and won a recent battle about homosexual sodomy — highly visible litigation in which its lawyers worked to uphold the lawful prohibition of homosexual sodomy. This history makes it particularly reasonable for the Attorney General to worry about the internal consequences for his professional staff (for example, loss of morale, loss of cohesiveness and so forth) of allowing a lawyer, who openly — for instance, on her employment application and in statements to coworkers — represents herself to be “married” to a person of the same sex, to become part of his staff. Doubt and uncertainty of purpose can undo an office; he is not unreasonable to guard against that potentiality.

Shahar also argues that, at the Department, she would have handled mostly death penalty appeals and that the Pickering test requires evidence of potential interference with these particular duties. Even assuming Shahar is correct about her likely assignment within the Department, a particularized showing of interference with the provision of public services is not required. Waters, 511 U.S. at 673-75, 114 S.Ct. at 1887 (“Few of the examples [of government employers restricting protected speech] we have discussed involve tangible, present interference with the agency’s operation. The danger in them is mostly speculative.”) In addition, the Attorney General must be able to reassign his limited legal staff as the needs of his office require. As the Third Circuit said in Ness v. Marshall, 660 F.2d 517, 521-522 (3d Cir.1981):

That a city solicitor could conceivably operate in such a legal/teehnical manner is a possibility that need not concern us here. Neither need we decide whether the plaintiffs in fact limited themselves to the role they described____ Under the Administrative Code it is contemplated that a may- or might rely upon the city solicitors for the legal advice necessary to implement policy.

In a similar way, it is not for this court to tie the Department’s hands by telling it which Staff Attorneys may be assigned to which cases or duties or to force upon the Attorney General a Staff Attorney of limited utility. Such an interference by the federal judiciary into the internal organization of the executive branch of a state government is almost always unwarranted. Cf. Mayor of Phila. v. Educational Equality League, 415 U.S. 605, 613-17, 94 S.Ct. 1323, 1330-1331, 39 L.Ed.2d 630 (1974) (“[T]o the degree that the principles cited by the Mayor reflect concern that judicial oversight of discretionary appointments may interfere with the ability of an elected official to respond to the mandate of his constituency, they are on point.”).

D.

As we have already touched upon, the Attorney General, for balancing purposes, has pointed out, among other things, his concern about the public’s reaction — the public that elected him and that he serves — to his having a Staff Attorney who is part of a same-sex “marriage.” Shahar argues that he may not justify his decision by reference to perceived public hostility to her “marriage.” We have held otherwise about the significance of public perception when law enforcement is involved. In McMullen v. Carson, 754 F.2d 936 (11th Cir.1985), we held that a sheriffs clerical employee’s First Amendment interest in an off-duty statement that he was employed by the sheriffs office and also was a recruiter for the Ku Klux Klan was outweighed by the sheriffs interest in esprit de corps and credibility in the community the sheriff policed. More important, we relied, in large part, on public perceptions of the employee’s constitutionally protected act. Id. at 938-940.²²

In McMullen, both public perception and the anticipated effect that the employee’s constitutionally protected activity would have on cohesion within the office were crucial in tipping the scales in the sheriffs favor. Nothing indicates that the employee had engaged in a criminal act or that he had joined an organization (he had joined the Invisible Empire²³) that had engaged in any criminal act. Given that it was additionally undisputed that neither the employee’s statements nor his protected expressive association hindered his ability to perform his clerical duties and that the specific clerk “performed his duties in exemplary fashion,” id. at 937, the two factors — public perception and anticipated effect — seemed to be the only ones weighing on the sheriffs side of the scale. Id. at 938 (“The fundamental question here is whether plaintiff can be fired for his Klan beliefs and activities just because of the violent public reaction to his employment____”). But that was enough.

This case is different from McMullen in some ways, but McMullen guides us about the significance of “public perception.” In this case, the Attorney General was similarly entitled to consider any “deleterious effect on [his] ability to enforce the law of the community,” id., and that “[u]nder our system of Government, that duty [law enforcement] can be performed only with the consent of the vast majority____ Efficient law enforcement requires mutual respect, trust and support.” Id. at 939.

The Attorney General was also entitled to conelude that the public may think that employment of a Staff Attorney who openly purports to be part of a same-sex “marriage” is, at best, inconsistent with the other positions taken or likely to be taken by the Attorney General as the state’s chief legal officer. The Attorney General has a right to take steps to protect the public from confusion about his stand and the Law Department’s stand on controversial matters, such as same-sex marriage.

Public perception is important; but, at the same time, it is not knowable precisely. That the public (which we know is rarely monolithic) would not draw the Attorney General’s anticipated inferences from Shahar’s “marriage” or, at least, would not attribute such perceptions to the Department or the Attorney General is a possibility.²⁴ But assessing what the public perceives about the Attorney General and the Law Department is a judgment for the Attorney General to make in the day-to-day course of filling his proper role as the elected head of the Department, not for the federal judiciary to make with hindsight or from a safe distance away from the distress and disturbance that might result if the decision was mistaken. We must defer to Georgia’s Attorney General’s judgment about what Georgians might perceive unless his judgment is definitely outside of the broad range of reasonable views. Nothing that either the Supreme Court or this circuit has held in applying the Pickering test leads us to a different conclusion. See e.g., Waters v. Churchill, 511 U.S. 661, 673-75, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686 (1994) (plurality opinion); Connick v. Myers, 461 U.S. 138, 154-56, 103 S.Ct. 1684, 1694, 75 L.Ed.2d 708 (1983).

Shahar says that by taking into account these concerns about public reaction, the Attorney General impermissibly discriminated against homosexuals; and she refers us to the Supreme Court’s recent decision in Romer v. Evans, —U.S.-, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). In Romer, the Supreme Court struck down an amendment to a state constitution as irrational because the amendment’s sole purpose was to disadvantage a particular class of people (to “den[y] them protection across the board,” id. at -, 116 S.Ct. at 1628) and because the government engaged in “classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Id. at-, 116 S.Ct. at 1629.

Romer is about people’s condition; this case is about a person’s conduct.²⁵ And, Romer is no employment case. Considering (in deciding to revoke a job offer) public reaction to a future Staff Attorney’s conduct in taking part in a same-sex “wedding” and subsequent “marriage” is not the same kind of decision as an across-the-board denial of legal protection to a group because of their condition, that is, sexual orientation or preference.²⁶

Ill

This ease is about the powers of government as an employer, powers which are far broader than government’s powers as sovereign. In addition, the employment in this case is of a special kind: employment involving access to the employer’s eonfidences, acting as the employer’s spokesperson, and helping to make policy. This kind of employment is one in which the employer’s interest has been given especially great weight in the past. Furthermore, the employment in this case is employment with responsibilities directly impacting on the enforcement of a state’s laws: a kind of employment in which appearances and public perceptions and public confidence count a lot.

Particularly considering this Attorney General’s many years of experience and Georgia’s recent legal history, we cannot say that he was unreasonable to think that Sha; har’s acts were likely to cause the public to be confused and to question the Law Department’s credibility; to interfere with the Law Department’s ability to handle certain controversial matters, including enforcing the law against homosexual sodomy; and to endanger working relationships inside the Department. We also cannot say that the Attorney General was unreasonable to lose confidence in Shahar’s ability to make good judgments as a lawyer for the Law Department.

We stress in this case the sensitive nature of the pertinent professional employment. And we hold that the Attorney General’s interest — that is, the State of Georgia’s interest — as an employer in promoting the efficiency of the Law Department’s important public service does outweigh Shahar’s personal assoeiational interests.

We do not decide today that the Attorney General' did or did not do the right thing when he withdrew the pertinent employment offer. That decision is properly not ours to make. What we decide is much different and less: For the Law Department’s professional staff, Georgia’s Attorney General has made a personnel decision which none of the asserted federal constitutional provisions prohibited him from making.²⁷

AFFIRMED.

1 . For clarily’s sake, we use the words "marriage” and “wedding” (in quotation marks) to refer to Shahar's relationship with her partner; we use the word marriage (absent quotation marks) to indicate legally recognized heterosexual marriage.

2 . These doubts are suggested by a variety of considerations, to state briefly a few: (1) where "rights” are not set out in the Constitution’s text, we must be especially cautious about creating rights merely because they might seem like a good idea to us or because some part of the population believes them to be a good idea. See Bowers v. Hardwick, 478 U.S. 186, 194, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986) ("The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.”); (2) we are now in the two hundred and twenty-first year of the independence of the Nation and well over a centuiy beyond the adoption of the Civil War Amendments, including the Fourteenth Amendment, to the Constitution, yet no federal appellate court or state supreme court has recognized the federal rights of same-sex marriage claimed by Plaintiff; (3) the institution of marriage has been the source before of constitutional controversy in which the challenge was made that the institution of marriage involved some combination other than one man and one woman. The advocates of polygamy, we assume, were no less sincere than the advocates of same-sex marriage, and they too had some religious arguments for their views. Yet, the Supreme Court repeatedly held that the Constitution provides no protection to polygamous marriages. See e.g., Reynolds v. United States, 98 U.S. 145, 166-167, 25 L.Ed. 244 (1878) (Free Exercise Clause does not require that "those who make polygamy a part of their religion are excepted from the operation of the statute” criminalizing polygamy).

3 . Though the Bowen opinion was a plurality opinion, a majority of the Court joined in the portion of the opinion quoted above.

4 . When she was employed by the Department as a summer clerk and when she was offered a position with the Department, Shahar was known as "Robin Brown.” Following her "wedding,” she and her partner changed their last names to "Shahar.”

5 ."To carry out the functions of the Attorney General and the Department of Law,” section 45-15-30 of the Code of Georgia empowers the Attorney General to hire various subordinate lawyers within the Department. Section 45-15-31(a) provides that all such subordinate attorneys “shall be appointed by the Attorney General for such periods of time as he deems advisable” and "may be removed by the Attorney General.”

6 . Greenfield was employed by a state university at the time.

7 . On appeal, Shahar does not contest the dismissal of her substantive due process claim.

8 .Shahar moved for summary judgment on her freedom of association and free exercise claims.

9 . The Supreme Court has identified the origin of the right to intimate association as First Amendment freedom of association. See Board of Dirs. of Rotary Intern. v. Rotary Club, 481 U.S. 537, 545-47, 107 S.Ct. 1940, 1946, 95 L.Ed.2d 474 (1987).

10 . In Dike, the district court had dismissed the teacher's complaint on the ground that no constitutionally protected interest was involved. The Dike court's actual holding was that she had stated a cause of action and that further proceedings were necessary. Id. at 785.

11 . In her concurring opinion when the case was before our three-judge panel, Judge Kravitch characterized the Dike opinion this way: "nominally applying strict scrutiny to school board's burden on employee's liberty interest in breastfeeding her child, but remanding for reconsideration of whether school board's interest in avoiding disruption of educational process, ensuring that teachers perform their duties without distraction, and avoiding potential liability for accidents were strong enough to justify the burden.” Shahar v. Bowers, 70 F.3d 1218, 1231 n. 11 (11th Cir.1995), vacated 78 F.3d 499 (1996). See also id. at 1231 ("A survey of intimate association cases (and analogous privacy cases) in the context of employment reveals that courts, irrespective of the doctrinal test being applied, have consistently balanced the interest of the government employer in the efficient functioning of its office against the employee’s interest in pursuing his or her constitutionally protected freedom.”) We agree that Dike, given the case's procedural posture on appeal, is not clear about what, if anything, it actually decides about the applicability of strict scrutiny — as opposed to balancing of interests — to government employment cases.

12 . For background, see Pickering v. Board of Ed., 391 U.S. 563, 566-68, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). The outcome of the Pickering balancing test is a question of law. See e.g., Connick v. Myers, 461 U.S. 138, 150 n. 10, 103 S.Ct. 1684, 1692 n. 10, 75 L.Ed.2d 708 (1983).

13 . In Umbehr, the Court determined “whether, and to what extent, the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech.” Id., -U.S. at-, 116 S.Ct. at 2345. Upon holding that the First Amendment protects contractors from such retaliatory termination, it then determined the relevant standard for deciding whether a government contractor’s First Amendment rights had been violated.

14 . In Parks v. City of Warner Robins, 43 F.3d 609 (11th Cir.1995), we recently held that a government employee’s termination (pursuant to an anti-nepotism policy) did not impose a "significant burden” on either her right to marry or her right to intimate association and, therefore, we reviewed the city’s anti-nepotism policy (as applied to that employee) under the rational basis test. In so doing, we distinguished generally applicable legislative acts from ad hoc executive decisions:

Unlike the legislative act embodied in Warner-Robins' anti-nepotism policy, however, the secretary’s reassignment in McCabe [v. Sharrett, 12 F.3d 1558 (1994) ] was a quintessentially executive act. See McKinney v. Pate, 20 F.3d 1550, 1557 n. 9 (11th Cir.1994) (en banc) (distinguishing executive acts, which “characteristically apply to a limited number of persons” and which “typically arise from the ministerial or administrative activities of members of the executive branch” from legislative acts, which “generally apply to a larger segment of ... society" and which include "laws and broad-ranging executive regulations.”).

Id. at 613 n. 2. Nothing in this opinion is intended to disapprove Parks or to hint that it is no longer the law in this circuit for reviewing legislative acts.

15 . Livas involved the termination of an assistant state’s attorney for political patronage reasons and, accordingly, the Seventh Circuit analyzed that claim under the test developed by the Supreme Court for such cases. Though Shahar's case is not a political patronage case and does not trigger the precise same concerns as those cases, her case is analogous to Livas (and other political patronage cases involving prosecutors). That is, the chief attorney (at whatever level, for example, attorney general, district attorney) must have a faith and confidence in his professional legal staff that might not ordinarily be required in other areas of government employment. So, in balancing the parties' interests, the chief attorney must be given greater deference in his employment decisions than might be appropriate in other areas of government employment. See also Americanos v. Carter, 74 F.3d 138, 143 (7th Cir.1996) (deputy attorney general not entitled to protection where "DAGs have the direct ability to implement the policies and goals of the AG” and "the legislature ... also felt that it was important for an AG to employ the legal staff of his or her own choosing”) (citing relevant statute); Monks v. Marlinga, 923 F.2d 423, 426 (6th Cir.1991) (per curiam) (assistant prosecuting attorney not entitled to protection as "the job of assistant prosecutor is a policy-making position”). Cf. Branti v. Finkel, 445 U.S. 507, 519 n. 13, 100 S.Ct. 1287, 1295 n. 13, 63 L.Ed.2d 574 (1980)(observing that responsibilities of assistant public defender are "in contrast to the broader public responsibilities of an official such as a prosecutor.")

At least before the Government Employee Rights Act of 1991, we, in our Title VII and Age Discrimination in Employment Act jurisprudence, held that assistant state attorneys and the like — lawyers who serve at the pleasure of their policy-making chief — were not employees protected by the statutes, but were members of the personal staff of the chief lawyer: the position is one of policy-making level, involving one who necessarily advises, and acts upon, the exercise of constitutional and legal powers of the chief's office. See e.g., EEOC v. Reno, 758 F.2d 581, 584 (11th Cir.1985) (assistant state attorney). See also Wall v. Coleman, 393 F.Supp. 826, 831 (S.D.Ga.1975) ("As a matter of common knowledge and experience we know that [a district attorney] gets public credit for the good job done and impression made by his assistants and gets public criticism for the poor performance or impression made by his assistants. At election time he is judged by what he and his assistants have done.”). This “personal staff” (to use Congress’s words) idea embodies the general and traditional proposition that positions of confidentiality, policy-making or acting and speaking before others on behalf of the chief are truly different from other kinds of employment. This point is central to the case now before us.

In deciding the present case, we put aside all other kinds of public employment; but, in doing so, we do not say today that other kinds of employment would necessarily lead to a different result.

16 . The controversy in the State of Georgia and the Attorney General’s involvement at the heart of that controversy, both as the State’s litigator and its legal advisor, have not let up since the Attorney General’s 1991 decision to revoke the offer to Shahar. See In re R.E.W., 267 Ga. 62, 472 S.E.2d 295 (1996) (three-judge dissent from denial of certiorari to review court of appeal decision holding restriction on father’s visitation rights inappropriate where based on his homosexual relationship); Christensen v. State, 266 Ga. 474, 468 S.E.2d 188, 190 (1996)(in case involving same-sex solicitation in public rest area, upholding — against challenge based on state constitution — statute criminalizing solicitation of sodomy); City of Atlanta v. McKinney, 265 Ga. 161, 454 S.E.2d 517, 521 (1995) (striking down portion of Atlanta ordinance mandating provision of benefits to registered "Domestic Partners”); Van Dyck v. Van Dyck, 262 Ga. 720, 425 S.E.2d 853 (1993) (live-in lover statute inapplicable to attempt to modify alimony where former spouse lived in meretricious same-sex relationship); Op. Att’y. Gen 96-7, 1996 WL 180274 (Ga.A.G.) (Attorney General called on to advise whether state college newspaper may refuse to publish advertisements suggesting that homosexuals are not “bom gay” and “[t]here is another way out” and containing text which “might be perceived to 'derogatorily describe homosexuals' ”); Op. Att'y Gen. 94-14 (1994 Ops. Att’y Gen. Ga. 32 (Darby 1994)) (Attorney General called on to advise Insurance Commissioner as to approval of proposed policy amendment affording group accident and health coverage to "domestic partners"); Op. Att'y Gen. 93-26 (1993 Ops. Att'y Gen. Ga. 72 (Darby 1993)) (Attorney General called on to advise Insurance Commissioner regarding "group health insurance provided pursuant to municipal ordinances which create the status of domestic partnership”).

17 . About public perception, we accept that the fact the Shahars are professed lesbians and see themselves as "married" does not prove beyond reasonable doubt that either of them has engaged in sodomy within the meaning of Georgia law. But we also accept that, when two people say of themselves that they are "married” to each other, it is reasonable for others to think those two people engage in marital relations.

A United States Circuit Judge in another circuit has written: “Sodomy is an act basic to homosexuality.” See Watkins v. U.S. Army, 847 F.2d 1329, 1357 (9th Cir.1988) (Reinhardt, J., dissenting), vacated, 875 F.2d 699 (1989). We cannot say that Georgia’s Attorney General is clearly wrong to worry that reasonable people— inside and outside the Law Department — in Georgia could think along these same lines. Whatever else may be doubted about Georgia's sodomy law, we know that its application to homosexual sodomy violates no fundamental liberty interest protected by the Federal Constitution because the Supreme Court has already so held. See Bowers v. Hardwick, 478 U.S. 186, 193-98, 106 S.Ct. 2841, 2846-47, 92 L.Ed.2d 140 (1986). See also id. at 188 n. 2, 106 S.Ct. at 2842 n. 2 (“We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.”). We acknowledge that some reasonable persons may suspect that having a Staff Attorney who is part of a same-sex "marriage" is the same thing as having a Staff Attorney who violates the State’s law against homosexual sodomy. So, we accept that Shahar's participation in a same-sex "wedding” and "marriage" could undermine confidence about the Attorney General's commitment to enforce the State's law against homosexual sodomy (or laws limiting marriage and marriage benefits to traditional marriages).

Shahar has tried to analogize this case (specifically, the Attorney General's concerns about Shahar’s “marriage”) to miscegenation cases. Particularly given the obvious difference between concerns about public perception about miscegenation — which cannot constitute a legitimate governmental interest, see Loving v. Virginia, 388 U.S. 1, 10-12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967) — and concerns about public perceptions about whether a Staff Attorney in the Attorney General’s office is engaged in an ongoing violation of criminal laws against homosexual sodomy — which laws the Supreme Court has said are valid, see Bowers, 478 U.S. at 193-198, 106 S.Ct. at 2846-47, we believe that the analogy is not helpful to decide this case.

18 . Shahar was notified of the withdrawal of her employment offer at a face-to-face meeting not with the Attorney General, but with two of his senior aides. The withdrawal of the offer was set out in writing in a letter signed by the Attorney General which was handed to Shahar at this meeting. The Attorney General did not meet with Shahar before he withdrew his offer. He acted based on the information supplied to him from his trusted aides who had spoken directly with Shahar — by telephone or in person — about her intent to "marry" a woman and from aides who had seen her job application in which she had, in writing, described a woman as her "future spouse." The decisive information that Shahar intended, in a religious celebration, to "marry” a woman and then to be known herself as a "married” woman was not erroneous.

We cannot say that the Attorney General acted unreasonably in relying on this information or in acting without his having spoken personally with Shahar. See generally Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). See also Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989). As we see it, the Attorney General's not having met with Shahar is inconsequential to the Piclcering balance.

19 . We are not the first court to assume the existence of a right and, then, to go on to apply the Pickering balancing test, taking into account the assumed right. See e.g. Kemp v. State Bd. of Agric., 803 P.2d 498, 505 (Colo.1990) (en banc), cert. denied, 501 U.S. 1205, 111 S.Ct. 2798, 115 L.Ed.2d 972 (1991) ("Even assuming that [the employee’s] right to petition was implicated, the Pickering/Connick balancing test is equally applicable in deciding whether the state’s interest as an employer outweighs the [F]irst [A]mendment interest of the employee.”); Barnard v. Jackson Cty., 43 F.3d 1218, 1223 (8th Cir.1995) ("Because we believe that the second component of the above test resolves the issues regarding Barnard’s contacts with the Star, we assume without deciding that Barnard’s speech with the Star touched upon matters of public concern, and we proceed to the Pickering balancing test.”).

20 . Under Georgia law, a person desiring a name change must “present a petition to the superior court of the county of his residence, setting forth fully and particularly the reasons why the change is asked, O.C.G.A § 19-12-l(a). "Within seven days of the filing of the petition, the petitioner shall cause a notice of the filing, signed by him, to be published in the official legal organ of the county once a week for four weeks.” O.C.G.A § 19 — 12—1(b).

21 . We recognize that some of these acts (the exchange of rings, the insurance and property ownership) may not have been known by the Attorney General when he decided to withdraw Shahar’s job offer. We can still consider them. First, these additional facts do not change the reason — Shahar's "wedding" and "marriage"— for the withdrawal of the job offer. Second, in balancing the Attorney General’s interests with Shahar’s, the facts of Shahar’s subsequent conduct are evidence of the reasonableness of the Attorney General’s concerns (about potential public knowledge and perception) at the time he made his decision. By the way, Shahar has requested "reinstatement” as part of her “relief." "After-acquired evidence" can be especially relevant in that context. McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 362, 115 S.Ct. 879, 886, 130 L.Ed.2d 852 (1995).

22 . The Supreme Court later cited McMullen with approval, in Rankin v. McPherson, 483 U.S. 378, 391 n. 18, 107 S.Ct. 2891, 2901 n. 18, 97 L.Ed.2d 315 (1987), as follows:

This is not to say that clerical employees are insulated from discharge where their speech, taking the acknowledged factors into account, truly injures the public interest in the effective functioning of the public employer. Cf. McMullen v. Carson, 754 F.2d 936 (C.A.11 1985) (clerical employee in sheriff’s office properly discharged for stating on television news that he was an employee for the sheriff's office and a recruiter for the Ku Klux Klan).

23 . About perceptions, we wrote these words: “Although the Invisible Empire is just one of the various Klan organizations in the country, the public makes no distinctions in its perception of the Klan as a monolithic entity.” McMullen, 754 F.2d at 938 (emphasis added). We also said this about the employer's duty to wait for events to unfold: “Plaintiff suggests Sheriff Carson acted too swiftly, that actual public perception should have been tested before taking any action. Carson responded that based on his 27 years of experience with the Jacksonville Sheriff's Office, he knew all too well what the reaction would be. ... There was no reason for Carson to wait in this type of situation.” Id. at 939.

24 . The Attorney General’s sense that Georgia’s people, in general, are set against equating in some way a relationship between persons of the same sex with traditional marriage seems to have been corroborated by O.C.G.A. § 19-3-3.1 (prohibiting same-sex marriage) and by 1 U.S.C i 7 (defining marriage as consisting of a man and a woman) and 28 U.S.C. § 1738C (giving states the power to refuse to recognize same-sex marriages entered into in other states). The federal statutes became law with the support of both of Georgia's senators and ten of Georgia’s twelve Members of the House of Representatives and were sponsored by a Georgia Member of the House of Representatives.

25 . We also note that in deciding Romer, the Court did not overrule or disapprove (or even mention) Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which was similarly about conduct in that it held that the State of Georgia did not violate “substantive due process" in prosecuting homosexual sodomy as a crime.

26 . Neither Romer nor any other case in which a state government (acting as sovereign) violated the Equal Protection Clause of the Fourteenth Amendment by giving effect to private prejudice, see e.g. Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), convinces us otherwise.

27 . That the Attorney General did not revoke Shahar's offer because of her religious affiliation or her religious beliefs (as opposed to her conduct) is plain from the record. Assuming arguendo that the Attorney General's decision to revoke Shahar’s offer did implicate her Free Exercise rights, we believe that Pickering balancing applies, see e.g. Brown v. Polk County, Iowa, 61 F.3d 650, 658 (8th Cir.1995) (en banc), and that the Attorney General prevails in that balance for the reasons discussed above. In addition, several of us also doubt that a facially neutral executive act which adversely impacts on the exercise of one’s religion either constitutes a violation of the Free Exercise Clause or requires heightened scrutiny. Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 449-51, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 534 (1988) (government’s ability to carry out its policies "cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development"). We affirm the district court’s holding denying Shahar’s free exercise claim.

The district court also held that the record supports no reasonable inference that the Attorney General revoked Shahar’s offer because of her sexual orientation — as opposed to her conduct in “marrying" another woman. Because Shahar fails to point us to enough evidence to support such an inference, we also affirm the district court’s holding on Shahar's equal protection claim.