As most of us know, the First Amendment protects “freedom of association,” among the various protections it offers. And, what could be much more associational than marriage? Courts refer to that as “intimate association.” The constitutional right to intimate association protects the formation and preservation of certain kinds of highly personal relationships, thereby restricting governmental intrusion and interference.
A recent decision from the Eighth Circuit addressed intimate association in the #MeToo era, reversing a district court decision that would have permitted the wife of a sheriff who was the subject of sex harassment claims to challenge the decision to fire her. Muir v. Decatur Cty., No. 18-1057, 2019 U.S. App. LEXIS 6958 (8th Cir. Mar. 8, 2019).
Here’s the story. Bert Muir was the Sheriff of Decatur County, Iowa. Bert’s wife, Tamela, also worked for the Sheriff’s Department as a jailer and dispatcher. They got married after they both had started working for the Department. Tamela was an at-will employee.
Complaints about Bert’s harassment of women in the Sheriff’s Department surfaced in November 2015. When confronted with these allegations (and the petition for removal that was to be filed), Bert resigned as Sheriff. Ben Boswell became the acting Sheriff. On the advice of counsel (a former criminal prosecutor), Boswell also placed Tamela on administrative leave because of concerns that “‘problems’ might arise if Tamela ‘was allowed to remain working around employees whom her husband had harassed, and who had signed affidavits in support of her husband’s removal from office.’”
A couple weeks later, Tamela was told Boswell intended to fire her because he did not want employees “‘who experienced harassment to perceive that [her] return to employment threaten[ed] the work environment in different ways due to loyalty to [her] husband, past loyalties to him as the former Sheriff or for other reasons.'” Specifically, Boswell was concerned that employees would fear “‘retaliation towards them in response to their testimony which resulted in Bert’s resignation.’” Boswell concluded that he needed “‘to have absolute trust in the employees who work for [him]’ and that he ‘would not have this trust in [her] were [she] to return to work.’”
Tamela immediately sued under Section 1983, alleging First Amendment retaliation and claiming that Boswell fired her simply because she was married to Bert. Boswell and the County filed a motion for summary judgment, which the district court denied, holding that Boswell was not entitled to qualified immunity, and that the County could be subject to municipal immunity. An appeal followed.
Unanimously reversing the district court, the Eighth Circuit looked at the qualified immunity question and first considered whether a constitutional right was violated. Relying on its decision in Singleton v. Cecil, 133 F.3d 631 (8th Cir. 1998) (subsequent history deleted), the appellate court noted that in an intimate association, right-to-marry claim, “the key question is whether the government ‘directly and substantially interfere[d] with the . . . right to enter and maintain [a] marital relationship.’” Put otherwise, the right to marry “does not invalidate every state action that has some impact on marriage.” Id. at 634. Rather, there must be evidence that the government “significantly discouraged” a marriage, made a marriage “practically impossible,” or “acted with the goal of poisoning” a marriage. Id. at 635 . . . .”
In this case, Boswell’s termination of Tamela did not amount to a Constitutional violation because her firing – even if her marriage to Bert was a motivating factor – was not a direct and substantial interference with their marriage. One might say Bert accomplished that all on his own.