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

79 Pages Posted: 19 Sep 1999 Last revised: 15 Jan 2017

Bryan H. Wildenthal

Thomas Jefferson School of Law

Date Written: 1998

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, 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 people.

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

JEL Classification: K10

Suggested Citation

Wildenthal, Bryan H., To Say 'I Do': Shahar v. Bowers, Same-Sex Marriage, and Public Employee Free Speech Rights (1998). Georgia State University Law Review, Vol. 15, No. 2, p. 381, 1998; Thomas Jefferson School of Law Research Paper No. 181790. Available at SSRN: https://ssrn.com/abstract=181790

Bryan H. Wildenthal (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4342 (Phone)

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