Court Upholds Anti-Fraternization Rule

Written on 12/10/2022

Calvin Lewis was a captain with the St. Tammany Parish Sheriff’s Office in Louisiana. In 2007, Lewis met a woman referred to by the Court as “Jane Doe” while he was assigned to a work detail, and they began dating thereafter. Lewis and Doe, and Doe’s two children from a previous relationship, began living togeth­er in May 2010. Lewis’s relationship with Doe, who had a past felony conviction at the time the two began dating, was open and well known among his colleagues.

In January 2017, after having been promoted to Captain, Lewis learned of a Facebook post in which someone com­mented that “a newly promoted captain” was living with a convicted felon in viola­tion of the Department’s policies. Lewis advised the Sheriff of the post. Several months later, in May 2017, Lewis was called to a meeting with internal affairs investigators to discuss his relationship with Doe. There, he was informed that if he wanted to continue working for the Sheriff, he would be required to disas­sociate from Doe due to her status as a convicted felon.

Lewis refused to do so and conse­quently, was terminated pursuant to the Department’s anti-fraternization policy, which prohibits personnel from engaging in personal relationships or associations with known felons. Lewis sued, contending that the anti-fraterni­zation policy violated his constitutional right to personal association and privacy in his intimate relationships.

The federal Fifth Circuit Court of Appeals ruled against Lewis. The Court began by acknowledging that “though not expressly included in the text of the amendment, implicit in the right to engage in First Amendment-protected activities is a corresponding right to associate with others in pursuit of a wide variety of political, social, eco­nomic, educational, religious, and cul­tural ends. Two classes of associations have been identified by the Supreme Court as being protected by the First Amendment: expressive associations and intimate associations.

“While expressive association emanates from the First Amendment’s protections of expression, intimate association primarily derives from the fundamental right to personal liberty and the resulting freedom to choose ‘to enter into and maintain certain intimate human relationships.’ This Court has acknowledged that family relationships are at the foundation of this right to intimate association, because these relationships by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively per­sonal aspects of one’s life.

“Due to the ‘marriage-like status’ of Lewis and Doe’s relationship, we analyze Lewis’s claim that his consti­tutional right to intimate association was violated under the jurisprudence applicable to the right of marriage. In determining the level of scrutiny appli­cable to governmental action alleged to infringe upon the right of marriage, we employ a two-step analysis. First, a court must ask whether the policy or action is a direct or substantial in­terference with the right of marriage. Second, if the policy or action is a direct and substantial interference with the right of marriage, apply strict scrutiny, otherwise apply rational basis scrutiny.

“Lewis argues that strict scrutiny must be applied to the policy while the Department counters that rational basis review applies. We agree with the reasoning of the trial court that the policy does not place a ‘direct and sub­stantial’ burden on the right to intimate relationships because it does not com­pletely prohibit one class of people from being with another. In other words, the policy only incidentally affects the right to intimate association because it requires employees who violate the policy to relinquish their jobs but does not prohibit the relationship itself.

“Reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. Under the deferential rational basis test, we ask whether a rational relationship exists between the policy and a conceivable legitimate objective. The Department’s legitimate interests in preventing its officers from placing themselves in compromising positions and in pre­serving the Department’s reputation in the public and in the law enforcement community are reasonably advanced by the anti-fraternization policy and therefore are sufficient to uphold the policy under the rational basis test. This is especially true for senior officers like Lewis whose conduct reflects on the reputation and integrity of the office.”

A dissenting judge argued that “the majority’s approach would create an anomaly in the law, whereby the right to marry is afforded less constitutional protection than other fundamental liberties. Courts apply heightened scrutiny – or, at least, some form of interest-balancing test – when a gov­ernment employer burdens or retaliates against an employee because of his or her religious exercise, speech or testimony on matters of public concern, political activities, educational decisions for his or her child, or decision to breastfeed. But when it comes to marriage – one of the most fundamental rights of all – the majority will do no more than ask whether the employment policy is rationally related to a conceivable legitimate objective, without balancing those objectives against the employee’s profound liberty interests. This double standard relegates marriage to the status of a second-class right. That cannot be.”

Lewis v. Smith, 2022 WL 10965839 (5th Cir. 2022).

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