To Say 'I Do': Shahar v. Bowers, Same-Sex Marriage, and Public Employee Free Speech Rights

Abstract:     
This article deals not with the political and legal debate over gay marriage (civil same-sex marriage) as such, but rather with certain legal issues raised by marriage as a cultural and linguistic concept when applied to gay or lesbian couples. The article begins with a comprehensive overview of Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997), which upheld then-Georgia State Attorney General Michael Bowers's revocation of Robin Shahar's employment as a staff attorney in his state office, because of her religious marriage ceremony with her female partner. The article then analyzes the case's free speech implications, an issue not pressed by Shahar but arguably central to the case. It argues that a ceremony like Shahar's, while not recognized as a legal marriage, is, among other things, a constitutionally protected speech act. It explores the legal, cultural, and linguistic struggle over the word "marriage," and the intriguing dichotomy and overlap between the public and private character of such speech, as with all speech regarding sexual orientation and gay identity. In the process, the article criticizes, and proposes some refinements of, the law governing public employee speech rights. The article concludes by analyzing the importance of the Shahar case in particular, and free speech rights in general, to legal strategies in defense of the liberty and integrity of gay people.

Keywords: marriage, same-sex marriage, gay marriage, lesbian marriage, religious marriage, civil marriage, gay and lesbian rights, free speech, freedom of religion

JEL Classifications: K10

Accepted Paper Series