“… The due process clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are … married or unmarried…”
(Kevin Daley, Daily Caller News Foundation) The 9th U.S. Circuit Court of Appeals ruled Friday that the Roseville, Calif., police department violated the Constitution when they fired a probationary officer for having an extramarital affair with a colleague.
The decision contradicts rulings in other federal appeals courts on similar issues, suggesting the Supreme Court may soon intervene.
The case was occasioned when an internal affairs investigation revealed that officers Shad Begley and Janelle Perez were engaged in an adulterous relationship. Though the inquiry did not yield evidence suggesting they had sexual encounters while on-duty, Perez was subsequently fired. The department claimed she was dismissed for unrelated conduct, though her superiors later admitted they morally disapproved on the Begley-Perez affair.
Perez then sued the city, arguing her termination violated her constitutional rights to privacy and intimate association.
A federal trial court sided with the city but a three-judge panel of the 9th Circuit reversed. Judge Stephen Reinhardt’s opinion for the panel explained the Supreme Court forbade the state taking adverse actions against individuals because they disapprove of private sexual conduct, in a 2003 case called Lawrence v. Texas. In that case, a 6-3 Court struck down a state law criminalizing homosexual sodomy.
Pointing to the Lawrence decision, Reinhardt said the police department was wrong to attach a stigma to Perez’s adulterous conduct and take retaliatory action against her.
“As the [Supreme] Court explained, the liberty protected by the due process clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are of the same sex or not, married or unmarried,” he wrote.
The opinion suggests Perez could be fired if her affair substantially affected her on-duty performance.
The 5th and 10th U.S. Circuit Courts have taken the opposite position in similar cases. The 5th Circuit upheld the termination of two Bossier Parish sheriff’s deputies in 2017, after the pair essentially switched wives and sought divorces from their legal spouse. A decade earlier in 2008, the 10th Circuit sanctioned the dismissal of a female officer for having an affair, finding there is no “fundamental liberty interest ‘to engage in a private act of consensual sex.’”
The Supreme Court often takes cases when multiple appeals courts disagree over the same question of law. Given the gravity of the issue and the split between the circuits, the justices may review this case, or a similar one, in the near future.
The case will now return to the trial court for further proceedings.
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