Anthony Lewis on Shahar v Bowers
David F. Austin
david_austin at NCSU.EDU
Fri Jun 13 20:57:04 PDT 1997
Today's (6/13/97) "Abroad at Home" NYT column by Lewis
comments on Shahar v Bowers. He writes in part,
> Ms. Shahar has been a faithful adherent since childhood of the
> Reconstructionist branch of Judaism, and a Reconstructionist rabbi
> performed her ceremony. She treated it as a "wedding" in a
> religious and personal sense only, making no claim that she was
> legally married.
> Judge Stanley F. Birch Jr., in a dissenting opinion joined by three
> other judges, said that that claim rested on "inferences from
> Shahar's acknowledged homosexuality" -- that "she is likely to
> violate Georgia's sodomy law or would be unable or unwilling to
> enforce Georgia's sodomy or marriage laws."
> But Mr. Bowers did not make such assumptions about other staff
> members, Judge Birch said. He did not infer, for example, that
> unmarried employees dating someone of the opposite sex may have
> committed the crime of fornication, or that "married employees
> could well have committed sodomy."
> In constitutional analysis, homosexuality is not in a suspect
> category as race is, where using it as a basis of state action
> automatically triggers heightened scrutiny by courts. But it does
> not follow that a state can elevate prejudice to a rule of law,
> applying it in the absence of any showing that a person's sexual
> orientation affects her job performance.
I wonder to what extent Ms. Shahar's religious background
is legally relevant.
Comments on this or other aspects of the case welcome.
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