In rejecting Coker's and Golden's claims, the Fifth Circuit distinguished the Supreme Court decision in Lawrence v. Texas, which struck down as unconstitutional a prohibition against same-sex sexual conduct. The Fifth Circuit explained that although Lawrence "expanded substantive constitutional rights related to personal sexual choices, [it did] not mandate a change in policies relevant to public employment, where . . . employees necessarily shed some of their constitutional rights as a legitimate exchange for the privilege of their positions." The court also relied heavily on the fact that the public employees in this case were law enforcement officers, who must maintain a certain degree of public credibility:
Sexual decisions between consenting adults take on a different color when the adults are law enforcement officers. Their enforcement duties include, for instance, crimes of human trafficking and spousal abuse that place them in sensitive positions with members of the public. Their involvement in relations that openly and "notoriously" violate the legally sanctioned relationships of marriage and family is likely to besmirch the reputation of the Sheriff's Department and hinder its ability to maintain public credibility. Moreover, these officers' extramarital relationships, even if consensual and loving at the outset, have great potential to create internal dissension within the force. Finally, it is not hard to envision how the existence of Coker's and Golden's cohabitation with each other’s wives prior to divorce and remarriage might be adversely used in litigation concerning the deputies' official conduct.The Fifth Circuit also rejected reliance on Obergefell v. Hodges, in which the Supreme Court held that the U.S. Constitution requires the recognition of same-sex marriage, reasoning that "Obergefell does not create 'rights' based on relationships that mock marriage."
Ultimately, it's unclear how much freedom public employers have to fire employees for engaging in constitutionally protected sexual conduct. The court's sweeping statement that public employees "shed some of their constitutional rights" is somewhat troubling. This particular case, however, involves both law enforcement officers and conduct that the court regarded as making a mockery of the institution of marriage. Government employers will presumably have less justification for penalizing employees who are not law enforcement officers and do not interact with the public, and even with respect to law enforcement officers, it seems unlikely, as a practical matter, that employers could punish everyone who engages in premarital sex. Thus, the result in this case may merely reflect the unusual facts.
Update: On February 9, 2018, the Ninth Circuit ruled in Perez v. City of Roseville, that a police officer's private, off-duty sexual conduct is protected by the U.S. Constitution (see this post).
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
