The 11th Circuit on Your First Amendment Right to an Extramarital Affair!

Does the First Amendment protect your right to have an extramarital affair?

That's the question discussed by a randy panel of 11th Circuit judges in this opinion released today (on appeal from a case pending before Judge Hurley):

The primary question in this appeal is whether Palm Beach County and one of its Fire Department officers violated a firefighter’s First Amendment right to intimate association when they demoted him for an extramarital affair with one of his subordinates. We conclude that they did not violate the Constitution because the County’s interest in discouraging extramarital association between supervisors and subordinates is so critical to the effective functioning of the Fire Department that it outweighs the firefighter’s interest in extramarital association with a subordinate, even if we assume arguendo that the First Amendment protects extramarital association as fundamental right.

".....even if we assume arguendo that the First Amendment protects extramarital association as [a] fundamental right"?

That's one I haven't heard:

"Honey, don't be mad, I was just exercising my First Amendment rights."

"Tea Baggers aren't called First Amendment absolutists for nothing."

"Hey baby, First Amendment often"?

Actually, here is the heart of the Court's reasoning on this issue:

In this case, we conclude that the County’s interest in discouraging intimate association between supervisors and subordinates is so critical to the effective functioning of its Fire Department that it outweighed Starling’s interest in his relationship with Smith in the workplace. In reaching this conclusion, we do not address whether the First Amendment protects intimate, extramarital association.2 Instead, we assume arguendo that Starling’s right to intimate, extramarital association with Smith is fundamental.3

And footnote three is instructive:

Intimate association involves “choices to enter into and maintain certain intimate human relationships.” Roberts v. U. S. Jaycees, 468 U.S. 609, 617-18 (1984). The First Amendment protects these choices to differing degrees against “undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” Id.

....unless you're gay.

(Anita Bryant added that last part)