To Say 'I Do': Shahar v. Bowers, Same-Sex Marriage, and Public Employee Free Speech Rights
79 Pages Posted: 19 Sep 1999 Last revised: 3 Jun 2021
Date Written: 1998
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 Shahar 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, even if not recognized as a legal marriage, is, among other things, a constitutionally protected speech act.
The article generally 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, lesbian, bisexual, and transgender people.
Keywords: marriage, same-sex marriage, same-sex partnership, same-sex commitment ceremony, gay marriage, lesbian marriage, religious marriage, civil marriage, gay rights, free speech, freedom of religion, lesbian, bisexual, transgender, LGBT rights
JEL Classification: K10
Suggested Citation: Suggested Citation