Tillman v. Wheaton-Haven Recreation Association, Inc. Brief for the Petitioners

    No. 95-

In The

Supreme Court of tf)e Hmteb States;
October Term, 1995

Martha Sabol Wright and John C. Wright, Jr.,
Petitioners,

v.

Metrohealth Medical Center,
Petroleum Helicopters, Inc ., et al. ,

Respondents.

On Petition for W rit of C ertiorari to the 
United States Court of Appeals for the Sixth Circuit

PETITION FOR A W RIT OF CERTIORARI

Eric Schnapper 
Counsel o f Record 

University o f  Washington 
School o f  Law 

1100 N.E. Campus Way 
Seattle. Washington 98195  
(206) 616-3167

Barbara Kaye Besser 
Bruce B. Elevin 
Elfvin & Besser 
4070 M ayfield Road 
Cleveland, Ohio 44121 
(216) 382-2500

Counsel for Petitioners



1

QUESTIONS PRESENTED

(1) Should heightened scrutiny be applied to 
government employment rules which penalize an employee 
for marrying a fellow employee?

(2) Is the constitutional right to marry infringed when 
the government removes an employee from his or her 
position solely because he or she has married a fellow 
employee with whom he or she may "interact" on the job?



In T he

Supreme Court of tfje $Jmteb &tate$
October Term, 1995 

No.

MARTHA SABOL WRIGHT and JOHN C. WRIGHT,
JR.,

Petitioners,

v.

METROHEALTH MEDICAL CENTER, 
PETROLEUM HELICOPTERS, INC., et al.

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioners Martha Sabol Wright and John C. Wright, 
Jr., respectfully pray that this Court grant a writ of certiorari 
to review the judgment and opinion of the United States 
Court of Appeals for the Sixth Circuit entered on July 13, 
1995, and the related appeal now pending in the Sixth 
Circuit sub nom. Wright v. Petroleum Helicopters, Inc. (No.



2

95-4260; 6th Cir.).1 On September 1, 1995, the Court of 
Appeals denied a timely petition for rehearing of the July 
13, 1995, decision.

This petition seeks a writ of certiorari to the Sixth 
Circuit to review two cases involving the identical question. 
Supreme Court Rule 12.2.

OPINIONS BELOW

The opinion of the Sixth Circuit, which is reported at 
58 F. 3d 1130 (6th Cir. 1995), is set out at pp. lla-32a of the 
Appendix hereto. ("App."). The order of the Court of 
Appeals denying the petition for rehearing and suggestion 
for rehearing en banc is unreported, and is set out at p. 33a 
of the Appendix. The decision of the District Court 
dismissing the 1993 complaint in this action is not reported, 
and is set out at pp. la-lOa of the Appendix.

The November 17, 1995, order of the district court 
dismissing petitioners’ 1995 complaint, which is not reported, 
is set out at p. 34a of the Appendix.

'As is set forth in the statement of the case, this second appeal 
concerns matters which occurred while the first case was pending on 
appeal, and is controlled by the Sixth Circuit’s decision of July 13, 
1995. On November 28, 1995, petitioners filed a motion in the Sixth 
Circuit suggesting that the second appeal be summarily affirmed. If, 
as is likely, the second appeal is resolved by the Sixth Circuit prior to 
the time at which the instant petition is scheduled for conference by 
this Court, counsel for petitioners will immediately so advise the 
Clerk of this Court.

3

JURISDICTION

The decision of the Sixth Circuit was entered on July 
13, 1995. A timely petition for rehearing was denied on 
September 1, 1995. This Court’s jurisdiction exists under 28 
U.S.C. section 1254(1).

A second, related case is now pending in the Sixth 
Circuit sub. nom. Wright v. Petroleum Helicopters, Inc., No. 
95-4260. A notice of appeal in this case was filed with the 
District Court on November 20, 1995, and the case was 
docketed in the Sixth Circuit on November 27, 1995. This 
Court’s jurisdiction over this aspect of the case exists under 
28 U.S.C. section 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment provides in pertinent 
part: "No State shall . . . deprive any person of life, liberty, 
or property, without due process of law, nor deny to any 
person within its jurisdiction the equal protection of the 
laws.". The First Amendment provides in pertinent part: 
"Congress shall make no law . . . abridging the freedom of 
speech".

STATEMENT OF THE CASE

(1) This action concerns the constitutionality of a 
government prohibition against employing a husband and 
wife in positions in which they could have occasion to 
"interact with each other." (App. 14a).

This litigation arose in connection with an emergency 
airlift medical service, LifeFlight. LifeFlight is owned and



4

operated by Metrohealth Medical Center, a county hospital 
located in Cleveland, Ohio; the helicopters utilized by 
LifeFlight are owned by and piloted by employees of 
Petroleum Helicopters, Inc., a private corporation under 
contract with Metrohealth. The airlift service is staffed by 
approximately 15 registered nurses, 18 pilots, and an 
indeterminate number of doctors. The doctors and nurses 
are employees of Metrohealth Medical Center.

Petitioner Martha Wright is a registered nurse who 
began work on the LifeFlight service in 1990; she is an 
employee of Metrohealth Medical Center. At the time this 
action commenced, petitioner John Wright was a pilot flying 
LifeFlight helicopters, and employed by Petroleum 
Helicopters Inc.. Although Petroleum Helicopters Inc. is a 
private corporation, its actions in connection with the instant 
litigation were taken at the behest and direction of 
Metrohealth; the courts below did not doubt that those 
actions were subject to the same constitutional constraints 
applicable to Metrohealth’s own employees.

Petitioners became engaged in October 1991, and 
made their marriage plans known to Metrohealth officials. 
In December 1991, petitioners began living together, an 
arrangement to which respondents have repeatedly and 
expressly disclaimed any objection. However, in November, 
1992, respondent Metrohealth warned petitioners that if they 
went ahead with their then impending wedding, they would 
be "in violation of' Metrohealth’s "nepotism policy". That 
policy precludes the employment of a husband and wife in 
jobs in which "they would necessarily interact with each 
other." (App. 14a).

This admonition precipitated a dispute between 
petitioners and respondents regarding whether the

5

"nepotism" policy actually applied to petitioners. Petitioners 
noted that petitioner John Wright was not "employed by the 
Hospital", and thus fell outside the literal terms of 
Metrohealth’s policy. Petitioners also objected that the 
positions that they held could not fairly be treated as so 
related as to fall under the policy, since in other instances 
married medical staff had been permitted to work together. 
The medical director of LifeFlight expressed the view that 
both petitioners should be permitted to work for LifeFlight 
even if married2. But higher level Metrohealth officials 
insisted that one of the petitioners be removed from 
LifeFlight.

Petitioners were married on December 19,1992. On 
the day after their wedding, Metrohealth officials directed 
Petroleum Helicopters Inc. to remove petitioner John 
Wright from LifeFlight. On December 21, 1992, two days 
after the wedding. Petroleum Helicopters Inc., informed 
petitioner John Wright that he was being transferred to the 
company’s operations in Louisiana.(App. 14a).3

^Deposition of Walter L. Blount, Jr., p. 53 (the chief physician for 
LifeFlight ”offer[ed] his support to[sic] allowing Ms. Sobol to 
continue in LifeFlight as a nurse"); Deposition of Mary Lou 
Monahan, p. 118 (the chief physician for LifeFlight had stated that 
he did "not have a problem with John and Martha being married and 
continuing in their current positions.")

3To avoid being separated from his wife, petitioner John Wright 
utilized his accumulated vacation days and remained in Ohio until, 
following the commencement of the instant litigation, counsel for the 
parties, at the behest of the district judge, agreed to postpone 
implementation of his transfer so long as the case was pending in the 
district court.



6

(2) Petitioners commenced this action on January 13, 
1993, in Ohio state court. Petitioners alleged Metrohealth’s 
policy violated, inter alia, the Equal Protection and Due 
Process Clauses of the Fourteenth Amendment because it 
violated their constitutional right to marriage. Petitioners 
also raised a number of state law claims. On January 15, 
1993, respondents removed the proceeding to the United 
States District Court for the Northern District of Ohio. 
Federal jurisdiction was invoked under 28 U.S.C. sections 
1343(3) and 1441.

On April 24,1994, the district court granted summary 
judgment in favor of respondents on petitioners’ 
constitutional claims; the court concluded that the disputed 
policy was in fact applicable to petitioners, and that the 
policy was constitutional. The district court also dismissed 
on the merits petitioners’ state law claims.

On July 13, 1995, the Sixth Circuit affirmed. 
Although acknowledging that petitioners had a constitutional 
right to mariy and that respondents’ actions had imposed an 
"economic burden" on petitioners, the court of appeals held 
that respondents’ actions were not subject to heightened 
scrutiny because those actions had not made petitioners’ 
marriage "practically impossible."(App. 20a-21a). A timely 
petition for rehearing and suggestion for rehearing en banc 
were denied on September 1, 1995.(App. 33a).

(3) Following the commencement of this action,
petitioners took two actions in an effort to accommodate 
respondents. First, petitioners agreed to work on different 
shifts, thus minimizing any chance that they would in fact 
"interact" on the job. Second, when LifeFlight began to 
operate out of a second facility in Solon, Ohio, petitioner 
John Wright transferred to Solon, while petitioner Martha

7

Wright continued to work at the LifeFlight operation sixteen 
miles away at the Metrohealth Medical Center in Qeveland. 
Respondents insisted, however, that both of these 
arrangements were unacceptable, and continued to demand 
that one of the petitioners be removed from LifeFlight 
altogether.

(4) On April 6, 1995, while the initial appeal was 
pending in the Sixth Circuit, respondent Petroleum 
Helicopters, Inc. dismissed petitioner John Wright. 
Subsequent to the Sixth Circuit’s decision, petitioner John 
Wright commenced a second action in the district court, 
alleging that in dismissing him Petroleum Helicopters Inc. 
had acted at the behest of Metrohealth, as it had in 1992, 
and that he had been fired as a method of implementing 
respondents’ nepotism policy. Wright v. Petroleum 
Helicopters, Inc. et al, 95 CV 2412 (N.D.Ohio). Federal 
jurisdiction was invoked under 28 U.S.C. section 1343(3). 
Respondents contend that the dismissal was taken for 
legitimate reasons unrelated to the disputed nepotism 
policy.3 4

Under the Sixth Circuit’s July 13, 1995, decision, 
however, the 1995 complaint did not state a claim on which 
relief could be granted. Petitioner John Wright 
acknowledged as much, and on November 17, 1995, the 
District Court dismissed the 1995 complaint. Petitioner has

4Because the 1995 complaint was dismissed in light of the Sixth 
Circuit’s opinion, respondents did not have occasion to file an answer 
to that complaint. In a state court proceeding brought earlier by 
petitioner to challenge the dismissal, however, respondents had 
asserted that his dismissal was ordered for reasons unrelated to that 
policy or the instant litigation.



8

appealed that dismissal to the Sixth Circuit, and has 
submitted to the court of appeals a memorandum 
acknowledging that that court’s prior opinion requires 
summary affirmance.

(5) In light of the developments which have occurred 
since the 1993 complaint was first filed, the issues in dispute 
between petitioners and respondents are whether petitioners 
are entitled to (a) monetary relief for the period during 
which petitioner John Wright was reassigned to Louisiana5, 
(b) monetary relief for the period following petitioner John 
Wright’s dismissal, (c) prospective injunctive relief directing 
that petitioner John Wright be rehired, and (d) prospective 
injunctive relief against enforcement of the disputed "no 
interaction" policy.6

’The monetary relief in question is the value of the vacation days 
petitioner John Wright consumed to avoid moving to Louisiana. 
Petitioners settled this claim against Petroleum Helicopters Inc., but 
it remains unresolved as against Metrohealth.

‘While the 1993 complaint was still pending in the District court, 
respondent Metrohealth announced its "intention" was to enforce the 
policy, not by demanding transfer of petitioner John Wright, but by 
removing petitioner Martha Wright from LifeFlight and transferring 
her to another position at the hospital. Metrohealth insisted, 
however, that the manner in which it chose to implement its policy 
was still a matter within its "discretion", Brief of Defendant-Appellee 
Metrohealth Medical Center, p. 9, and that in exercising that 
discretion "the interests of Metrohealth . . . come first.” Letter of 
Thomas H. Barnard to Barbara Kaye Besser, May 12, 1993, p. 2. 
Subsequently, however, petitioner John Wright was dismissed, 
allegedly as a method of enforcing that policy. Thus at this point in 
the litigation Metrohealth’s one time stated "intention" appears to be 
devoid of practical significance.

9

(6) The instant petition asks this court to grant a writ 
of certiorari to the Sixth Circuit (a) to review that court’s 
July 13, 1995, opinion, and (b) to review before judgment 
the pending appeal in Wright v. Petroleum Helicopters, Inc.. 
Supreme Court Rule 11. We have suggested to the Sixth 
Circuit that it dispose of the second appeal in an expeditious 
manner, so that its decision can be entered prior to the time 
when the instant petition is set for conference by this Court.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW IS IN CONFLICT WITH 
NUMEROUS DECISIONS OF THIS COURT

This case concerns one of the central tenets of this 
Court’s constitutional jurisprudence-that the government 
may not, absent special justification, condition employment 
on the relinquishment of constitutional rights, or penalize 
employees for the exercise of those rights. On repeated 
occasions this Court has agreed unanimously that heightened 
scrutiny applies to employment rules that burden in this way 
the constitutional rights of government employees. Rust v. 
Sullivan, 500 U.S. 173, 197-99(majority opinion), 207, 212-13 
(Blackmun, J„ dissenting)(1991); Rutan v. Republican Party 
o f Illinois, 497 U.S. 62, 71-79 (majority opinion), 98- 
100(Scalia, J., dissenting)(1990). The decision of the Sixth 
Circuit in the instant case, however, flatly refused to apply 
that well established rule. Instead, the court of appeals held 
that where government employees are removed from their



10

jobs because they exercised their constitutional rights to 
marry, no heightened scrutiny whatever is required.7

The constitutional principle disregarded by the court 
of appeals is a well established one.

For at least a quarter-century, this court has 
made clear that even though a person has no 
"right" to a valuable government benefit, . . . 
the government may not deny a benefit to a 
person on a basis that infringes his 
constitutionally protected interests . . .  ,[M]ost 
often we have applied the principle to denial 
of public employment.

Perry v. Sindermann, 408 U.S. 593, 597 (1972). "(L]oss of a 
job opportunity for failure to compromise one’s convictions 
states a constitutional claim." Rutan v. Republican Party o f 
Illinois, 497 U.S. at 77. "(Ojur ’unconstitutional conditions’ 
cases involve situations in which the Government has placed 
a condition on the recipient . . . prohibiting the recipient 
from engaging in the protected conduct." Rust v. Sullivan, 
500 U.S. at 197 (Emphasis omitted). This rule applies to 
any "adverse employment action" taken against an individual 
because of the exercise of a constitutionally protected right, 
Rutan, 497 U.S. at 62 (Scalia, J., dissenting), including 
actions with regard to hiring, dismissals, promotions, recalls, 
and transfers. Id. at 72-78(Majority opinion).

’Petitioner John Wright is technically an employee of Petroleum 
Helicopters, Inc., a private corporation; because, however, Petroleum 
Helicopters Inc. acted at the behest of Metrohealth Medical Center, 
a county hospital, to implement a county rule, there is no question 
that those actions are subject to constitutional constraints.

11

The instant case presents a classic example of an 
unconstitutional condition. When petitioners advised county 
officials that they intended to exercise their constitutional 
right to marry, they were admonished that doing so would 
result in removal of one of the petitioners from his or her 
job. When petitioners nonetheless insisted on exercising that 
constitutional right, petitioner John Wright was for that 
reason summarily transferred from his home in Ohio to 
Louisiana, and later dismissed. The Sixth Circuit held, 
however, that respondents’ actions were not subject to 
heightened scrutiny because, the court asserted, those 
actions did not "substantially interfere with the fundemental 
right to marry." (App. 21a). The Court of Appeals held 
that no constitutional claim was presented because the 
petitioners, even if physically separated by that compulsory 
transfer or otherwise penalized, had nonetheless succeeded 
in getting married. (App. 21a). The Sixth Circuit’s analysis 
of this issue is at every turn flatly inconsistent with four 
decades of decisions by this Court.

The core of the Sixth Circuit decision is a holding 
that constitutional guarantees of fundamental rights apply 
only to government action which "create[s] a direct legal 
obstacle" to the exercise of those rights, thus making that 
exercise "practically impossible." (App. 20a-21a). An 
employment rule which requires an employee to choose 
between her constitutional rights and her job, the court of 
appeals held, raises no constitutional claim because the 
employee remains free to retain that constitutional right 
merely by accepting the "economic burden" of losing some 
or all of the benefits of her employment. This is precisely 
the holding of the long repudiated decision in Adler v. Board 
o f Education, 342 U.S. 485, 493 (1952) ("[the employee’s] 
freedom of choice between membership in [a disapproved]



12

organization and employment in the school system might be 
limited, but not his freedom of speech." (Emphasis added).)

But constitutional doctrine which has 
emerged since that decision [in Adler] has 
rejected its major premise. That premise was 
that public employment may be conditioned 
upon the surrender of constitutional rights 
which could not be abridged by direct 
government action.

Keyishian v. Board o f Regents, 385 U.S. 589, 605 (1967).

The Sixth Circuit insisted that government policies 
which penalize the exercise by government workers of their 
constitutional right to marry raise no constitutional issue 
because, despite any "economic burdens", "the policy does 
not forbid them from marrying."(App. 20a). But this Court 
has repeatedly held a variety of restrictions on government 
employees to be unconstitutional despite the fact that, like 
the rules in the instant case, those restrictions left workers 
free to exercise their constitutional rights if they were willing 
to relinquish their jobs. Thus in Mt. Healthy City Bd. o f Ed. 
v. Doyle, 429 U.S. 274, 283-84(1977), Perry v. Sindermann, 
408 U.S. 593 (1972), and Pickering v. Board of Education, 
391 U.S. 563 (1968), there was no "direct legal obstacle" to 
criticism of school officials, only the "economic burden" of 
dismissal for those employees who had the temerity to 
exercise that constitutional right. It was not a "practical 
impossibility" for the plaintiffs in Elrod v. Bums, 427 U.S. 
347 (1976) or Branti v. Finkel, 445 U.S. 507 (1980), to join 
the Republican Party, or for the plaintiffs in Rutan to belong 
to the Democratic Party. In Torcaso v. Watkins, 367 U.S. 
488 (1961), Maryland law did not "forbid" the plaintiff to be

13

an agnostic. Yet in every one of these cases this Court 
applied some form of heightened scrutiny and found a 
constitutional violation.

The Sixth Circuit recognized that employees who 
exercised their constitutional right to marry would suffer an 
"economic burden", but dismissed that penalty as an 
"incidental effect" of government policy. (App. 20a). But 
the existence of such an "economic burden"-the loss of the 
government benefit conditioned on relinquishment of a 
constitutional right—is the linchpin of this Court’s 
unconstitutional condition doctrine.

A state job is valuable. Like most 
employment, it provides regular paychecks, 
health insurance, and other benefits.. . . Thus, 
denial of a state job is a serious privation. 
Nonetheless, respondents contend that the 
burden imposed is not of constitutional 
magnitude. Decades of decisions by this 
Court belie such a claim.

Rutan, 497 U.S. at 77(Emphasis added, footnote omitted). 
The unconstitutional condition doctrine does not turn on the 
magnitude of the economic burden imposed on those who 
exercise their constitutional rights. Thus in Rutan the Court 
held that heightened scrutiny applied to transfers tied to 
political affiliation, since the exercise of their constitutional 
rights imposed on the employees involved "the hours and



14

maintenance expenses that are consumed by long daily 
commutes". 497 U.S. at 74.®

The rule adopted by the Sixth Circuit is that the 
Constitution limits only "direct" restraints on the exercise of 
fundamental rights; denial of a government benefit to those 
who exercise their rights is not subject to heightened scrutiny 
because, it reasoned, that denial interferes with the rights at 
issue only "indirectly]." On this view, although it was 
unconstitutional in Zablocki v. Redhail, 434 U.S. 374 (1978), 
for the Milwaukee County Clerk to deny marriage licenses 
to fathers of children on APDC, the Clerk could have 
sought the same goals by dismissing any employee of the 
Clerk’s office who sought to marry after having fathered a 
child on welfare. But this Court has repeatedly held that the 
government cannot, by attaching conditions to government 
employment, achieve indirectly the very results which could 
not under the constitution be brought about directly.

[F]or if the government could deny a benefit 
to a person because of his constitutionally 
protected [conduct], his exercise of those 
freedoms would in effect be penalized and 
inhibited. This would allow the government 
to "produce a result which [it] could not 
command directly."

®In Torcaso v. Watkins, 367 U.S. 488 (1961), the burden at issue 
was deprivation of a commission as a notary public, a position whose 
economic value is ordinarily quite nominal. In Speiser v. Randall, 357 
U.S. 513 (1958), this Court declared unconstitutional a condition that 
had denied the plaintiff there an exemption from property tax for the 
first $1000 of the value of his property. Cal. Const. Art. XIII section 
1 '/« .

15

Perry v. Sindermann, 408 U.S. at 597. "What the First 
Amendment precludes the government from commanding, 
it also precludes the government from accomplishing 
indirectly". Rutan v. Republican Party o f Illinois, 497 U.S. at 
77-78.

The Sixth Circuit held that constitutional guarantees 
are simply not relevant where the government takes action 
against an employee to achieve some benign purpose, rather 
than with an intent to control the exercise of constitutional 
rights. "Any . . . burden created is no more than an 
incidental effect of a policy aimed at maintaining the 
operational efficiency of governmental departments, not a 
direct attempt to control the marital decisions of . . 
employees." (App. 20a). But similarly benign purposes 
animated many of the practices held by this Court to impose 
unconstitutional conditions. E.g. Rutan v. Republican Party 
o f Illinois, 497 U.S. at 74 (restrictions unconstitutional even 
if adopted for the purpose of ensuring that government 
employees would faithfully implement policies of elected 
officials). In Brand v. Finkel this Court expressly considered 
and rejected the contention that the unconstitutional 
condition doctrine should be limited to cases in which the 
government actually sought to coerce employees into not 
exercising the constitutional right in question. 445 U.S. at 
516.

Heightened constitutional scrutiny clearly would have 
been required by the decisions of this Court if respondents 
had transferred petitioner John Wright to Louisiana, or 
dismissed him, because he had exercised his constitutional 
right to join a political party, Elrod v. Bums, to criticize 
county health officials, Perry v, Sindermann, or to adhere to 
a particular religious faith. Torcaso v. Watkins. The



16

constitutional significance in the instant case of that very 
same burden is surely no different merely because the 
constitutional right at issue here is the right to marry. The 
decisions of this Court preclude any suggestion that the right 
to marriage is of any lesser importance than other 
fundamental rights. In United States v. Kras, 409 U.S. 434 
(1973), the Court stressed that "free speech [and] marriage 
[are] . . . rights that the Court has come to regard as 
fundamental." 409 U.S. at 446. In Zablocki v. Redhail, the 
Court insisted that the right to marry "must receive 
equivalent protection" to that accorded to the right to obtain 
an abortion. 434 U.S. at 386. See also Loving v. Virginia, 
388 U.S 1, 12 (1967)("Marriage is one of the ’basic civil 
rights of man,’ fundamental to our very existence and 
survival"); Skinner v. Oklahoma, 316 U.S. 535, 541 
(1942)("Marriage . . . [is] fundamental to the very existence 
and survival of the human race"); Maynard v. Hill, 125 U.S. 
190, 205 (1888)("Marriage . . . creat[es] the most important 
relation in life, . . . having more to do with the morals and 
civilization of a people than any institution.")

The Sixth Circuit suggested that its refusal to follow 
the unconstitutional condition doctrine was mandated by this 
Court’s decision in Zablocki v. Redhail, 434 U.S. 374 
(1978)(App. 19a-20a). But in the fifteen years since 
Zablocki, this Court has continued to apply that doctrine in 
a wide variety of circumstances.9 The court of appeal’s 
mistaken insistence that the right to marriage protects only

''Waters v. Churchill, 114 S. Ct. 1878 (1994); Rutan v. Republican 
Party o f Illinois, 497 U.S. 62 (1990); Rankin v. McPherson, 483 U.S. 
378 (1987); Connick v. Myers, 461 U.S. 138 (1983); Branti v. Fmkel, 
445 U.S. 506 (1980); Givhan v. Western Lines Consolidated School 
District, 439 U.S. 410 (1979).

17

individuals literally unable to marry derives at least in part 
from a misleading editing by the court of appeals of the text 
of the opinion in Zablocki. Zablocki itself describes three 
different categories of individuals whose rights were violated 
in that case; a list which expressly included individuals who 
were not prevented or deterred from marrying:

[1] Some . . . are absolutely prevented from 
getting married. [2] Many others, able in 
theory to satisfy the statute’s requirements, 
will be sufficiently burdened by having to do 
so that they will in effect be coerced into 
forgoing their right to marry. [3] And even 
those who can be persuaded to meet the 
statute’s requirements suffer serious intrusion 
into their freedom of choice in an area in 
which we have held such freedom to be 
fundamental.

434 U.S. at 387. The Sixth Circuit’s quotation of Zablocki 
inexplicably omits the pivotal last sentence. (App. 19a).

Certiorari should be granted to correct this palpable 
and important departure from the precedents of this Court.

II. THE DECISION BELOW IS IN CONFLICT WITH 
DECISIONS OF TWO OTHER CIRCUITS AND OF 

THE SUPREME COURTS OF FIVE STATES

The lower courts are sharply divided as to whether 
heightened scrutiny should be applied where government 
employees are dismissed, or subject to other adverse action, 
because of their exercise of the constitutional right to marry. 
The Ninth and Eleventh Circuits, like the Sixth Circuit,



18

reject heightened scrutiny. On the other hand, the Eighth 
and Tenth Circuits, together with the courts of last resort of 
five states, apply some form of heightened scrutiny. The 
decisions applying heightened scrutiny, not surprisingly, 
frequently rely on this Court’s unconstitutional condition 
decisions.10 As Judge Posner has observed, "the caselaw in 
this area, maybe because the subject matter is so emotional 
. . . is untidy." Hameetman v. City o f Chicago, 776 F. 2d 636, 
643 (7th Cir. 1985); see also id.; at 642 ("the scope of the 
doctrine [in cases such as Zablocki] is unsettled"); 
Townshend v. Board o f Education o f Grant County, 396 S.E. 
2d 185, 190 n.4 (W.Va. 1990)(criticizing as "eccentric" 
decisions in other states).

The minority view refusing to apply heightened 
scrutiny has been adopted by the Ninth and Eleventh 
Circuits. In Parks v. City o f Warner Robins, Georgia, 43 F. 3d 
609 (11th Cir. 1995), the plaintiffs, both employees of a city 
police department, were instructed that if they married the 
female officer would be dismissed.

Rather than losing her job, Parks postponed 
the wedding and brought the instant lawsuit;
[the two officers] have remained engaged, but 
unmarried, for over four years.

l0E.g., Voichahoske v. City o f Grand Island, 231 N.W. 2d 124, 127, 
194 Neb. 175 (I975)(cilingKeyishian, Perry, and Pickering); Cybyske v. 
Independent School Dist. No. 196, 347 N.W. 2d 256, 262 (Minn. 
1984){citing Pickering); Hall v. Board of Education, 639 F. Supp. 501, 
512 (N.D.I11. 1986)(citing Pickering); Newborn v. Morrison, 440 F. 
Supp. 623, 627 (S.D.I11. \9T7)(citing Pickering); O ’Neill v. Dent, 364 F. 
Supp. 565, 570 (E.D.N.Y. l9Ti)(citing Keyishian and Pickering.)

19

43 F. 3d at 612. The Eleventh Circuit held that the policy 
in question did not "’significantly interfere[e]’ with the 
decision to marry." 43 F. 3d at 613. The Ninth Circuit 
adopted the same rule in Parsons v. County o f Del Norte, 728 
F. 2d 1234 (9th Cir 1984). Parsons and Parks, like the Sixth 
Circuit in the instant case, specifically refused to apply strict 
scrutiny to adverse employment action taken against 
government employees who exercise their right to marry, 
utilizing instead a minimal rational basis standard. (App. 
21a-22a; Parks v. City o f Warner Robins, 43 F. 3d at 613-15; 
Parsons v. County o f Del Norte, 728 F. 2d at 1237).

The Nebraska Supreme Court, on the other hand, 
expressly applies strict scrutiny in such circumstances:

[A] public employee . . .  may not be dismissed 
or failed to be rehired for impermissible 
constitutional reasons such as race, religion or 
the assertion o f rights guaranteed by law or 
under the constitution." . . . Perry v.
Sindermann . . . Keyishian v. Board o f Regents 
. . . [WJhere a classification impinges upon 
fundamental freedoms protected by the 
Constitution, such classification must . . .  be 
not merely rationally related to a valid 
purpose, but necessary to the achievement of 
a compelling state interest. . . . The . . .  right 
to marry . . .  is a fundamental right afforded 
protection by the . . . United States 
Constitution . . . Therefore, . . . the [anti­
nepotism] rule in question can only be 
sustained if it promotes a compelling 
governmental interest.



20

Voichahoske v. City o f Grand Island, 231 N.W. 2d 124, 127- 
28, 194 Neb. 175 (1975)(Emphasis in original). Similarly, 
the Colorado Supreme Court requires proof of a "compelling 
state interest" to justify the exclusion of married students 
from significant aspects of public school activities. Zavala v. 
City and County o f Denver, 759 P. 2d 664, 673 (Colo. 
1988)(approving Beeson v. Kiowa County, 576 P. 2d 801, 39 
Colo. App 174 (1977)).“

The Iowa Supreme Court applies "’middle-level 
scrutiny’ . . . .  asking whether (an] anti-nepotism provision 
ha[s) a fair and substantial relationship to a laudable 
legislative purpose," upholding such provisions if they are 
"narrowly drawn" and "forwar[d] an important governmental 
objective." Sioux City Police Officers Ass'n v. City o f Sioux 
City, 495 N.W. 2d 687, 697 (Iowa 1993). Similarly, the 
Eighth Circuit applies to anti-nepotism rules the 
intermediate scrutiny standard of Reed v. Reed, 404 U.S. 71 
(1971). Espinoza v. Thoma, 580 F. 2d 346, 348 (8th Cir. 
1978)(the "no-spouse employment rule . . .[underfeed v. 
Reed . . . must rest upon some ground of difference having 
a fair and substantial relation to the object of the 
legislation."). Intermediate scrutiny is also utilized by the 
Michigan courts. Winrick v. City o f Warren, 299 N.W. 2d 27, 
28, 99 Mich. App. 770 (1980)("A constitutional analysis of 
the Warren antinepotism charter provision requires a middle 
level scrutiny . . .  not [proof of] a compelling state interest 
. . . [n]or . . .  the . . .  least stringent ’rational basis’ test");

"See 567 P. 2d at 805("the creation of a ’marriage relationship’ 
is a fundamental right. . . . Hence . . .  a board policy which 
discriminates against those who exercise that right violates the . . .
Fourteenth Amendment . . . unless there exists a compelling state 
interest which justifies that discrimination.")

21

see Bretz v. City o f Center Line, 276 N.W. 2d 617, 618 (Mich. 
Ct. App. 1979)(applying Reed v. Reed "test . . .  to determine 
the constitutionality of the . . .  ordinance" precluding hiring 
of sister of existing employee.)

The Supreme Court of Minnesota applies to these 
types of claims a balancing test. In Cybyske v. Independent 
School Dist. No. 196, 347 N.W. 2d 256 (Minn. 1984), the 
Minnesota court held that a refusal to hire a job applicant 
"because of her particular choice of marriage partner" would 
"impair" the applicant’s right to marriage and association; 
the constitutionality vel non of such a refusal, it ruled, would 
turn on "balancing the ’right to marriage’ claim against the 
. . . public purpose for the employer’s actions." 347 N.W. 2d 
at 263 (emphasis added).* 12 A similar approach is utilized 
in South Carolina. Hamilton v. Board o f Trustees o f Oconee 
County, 319 S.E.2d 717, 721 (S.C.App. 1984)(controlling 
issue is whether the school board’s interest in avoiding 
conflicts of interest "outweighs" impact on plaintiffs 
constitutional right to marry).

The Tenth Circuit, contrary to the Sixth, Ninth and 
Eleventh Circuits, holds that 'jajctions taken by a public 
official against a public employee because of the employee’s 
spouse can in certain circumstances . . . unconstitutionally 
burden the marriage relationship." Morfin v. Albuquerque

"See also id.(”a teacher’s associational freedom can be 
compromised in the school setting if outweighed by an appropriate 
concern of the public employer.")(Emphasis added).



22

Public Schools, 906 F. 2d 1434, 1440 (10th Cir. 1990).13 In 
that circuit the controlling constitutional standard is whether 
the "interference" with "the marital relationship is . . . 
unreasonable.” 906 F. 2d at 1439 (Emphasis added). The 
West Virginia Supreme Court utilizes a similar standard. 
Townshend v. Board o f Education, 396 F. 2d 185, 189 (is 
burden "reasonable"?), 190 (were "the policies . . . 
unreasonably overbroad"?)(W. Va. 1990).

In sum, the lower courts are now applying five 
distinct standards in evaluating claims that government 
employment rules penalize workers for exercising their 
constitutional right to marry. (1) The Sixth, Ninth and 
Eleventh Circuits use a minimal rational basis test. (2) The 
Nebraska and Colorado courts apply strict scrutiny. (3) The 
Eighth Circuit and state courts in Iowa and Michigan utilize 
intermediate scrutiny. (4) Minnesota and South Carolina 
state courts apply a balancing test. (5) In West Virginia and 
the Tenth Circuit a "reasonableness" standard is applied.

Certiorari should be granted to resolve the pervasive 
differences among the lower courts about this important and 
recurring issue.

l3The Tenth Circuit decision cited with approval two district court 
opinions that had applied a strict scrutiny test. Hughes v. Lipscher, 
720 F. Supp. 454, 458-61 (D.N.J. 1989); Newborn v. Morrison, 440 F. 
Supp. 623, 626-27 (S.D.I11. 1977).

23

III.
THIS CASE PRESENTS AN IMPORTANT 

CONSTITUTIONAL ISSUE WHICH SHOULD BE 
RESOLVED BY THIS COURT

This case arises at a time when countless women and 
men in all walks of life are struggling to balance the often 
conflicting demands of work and family. The hours, energy 
and pressures of work sorely tax the resources of husbands 
and wives committed to their marriages and to raising a 
family. Policies such as respondents’ can readily make a 
difficult situation impossible. At the very outset of 
petitioners’ marriage, their wedding led respondents to 
transfer petitioner John Wright a thousand miles from his 
bride, and ultimately to dismiss him. The Sixth Circuit’s 
characterization of that transfer as not involving a 
"substantial burden" on petitioners’ marriage reflects an 
incomprehensible insensitivity to the realities and very 
purposes of married life.

The decisions of the Sixth, Ninth and Eleventh 
circuits permit a government employer to penalize the 
exercise of the right to marriage in a way that clearly would 
not be permitted for the exercise of any other constitutional 
right. The right to marriage is thus relegated in those 
circuits to a second class status, inferior in importance and 
scope to other fundamental rights. The consequences of this 
disparate treatment are strikingly incongruous.

Although the Sixth Circuit accords no constitutional 
protection against adverse employment actions penalizing 
marriage, that circuit expressly (and properly) applies 
heightened scrutiny to government employment actions 
which penalize divorce. In Littlejohn v. Rose, 768 F. 2d 765



24

(6th Cir. 1985), the court of appeals held that a school board 
could not constitutionally refuse to rehire a teacher because 
she was obtaining a divorce.14

Similarly, the Eleventh Circuit holds that the 
constitution accords no protection to a police officer forced 
to resign because married to another police officer. Parks v. 
City o f Warner Robins, 43 F. 3d 609 (11th Cir. 1995). But 
that circuit holds that the same officer would be protected by 
the constitution if he or she faced discipline for dating the 
daughter of a convicted mobster. Wilson v. Taylor, 733 F. 2d 
1539 (11th Cir. 1984).15 Fifth Circuit precedent from

14768 F. 2d at 768-770:
"Given the ’associational interests that surround the 
. . . dissolution of [the marital] relationship’, such 
’adjustments’ as divorce and separation are naturally 
included within the umbrella of protection accorded 
to the right of privacy. . . . The Supreme Court has 
generally rejected the theory that a government 
benefit, such as public employment . . . may be 
denied . . .  on a basis that infringes . . . 
constitutionally protected interests . . . .  [A] person’s 
involvement in activity shielded by the 
constitutionally protected rights of privacy and 
liberty constitutes an impermissible reason for
denying employment.............Littlejohn’s claim falls
within the principles set forth above. She has 
presented evidence that she was denied employment 
because of her impending divorce."

15In Wilson the plaintiff had been dismissed for dating one Susan 
Blackburn, "the adopted daughter o f . . .  a convicted felon reputed to 
be a key figure in organized crime in central Florida." 733 F. 2d at 
1540. The court of appeals held that the dismissal was a per se 
violation of the constitution. "[GJovemment employment may not be

25

before the creation of the Eleventh Circuit, and thus 
controlling in both circuits, precludes a government agency 
from refusing to hire a job applicant solely because she is an 
unwed mother. Andrews v. Drew Municipal Separate School 
District, 507 F. 2d 611 (5th Cir. 1975).

Where a government employee is forced to resign 
because of her marriage to a fellow employee, the Ninth 
Circuit subjects that government policy to only minimal 
rational basis scrutiny. Parsons v. County o f Del Norte, 728 
F. 2d 1234, 1237 (9th Cir. 1984). But if the County of Del 
Norte had dismissed one of its employees because he was an 
acknowledge homosexual, the Ninth Circuit would apply a 
more searching heightened scrutiny. Meinhold v. U.S. 
Department o f Defense, 34 F. 3d 1469 (9th Cir. 1994).

The government employment policy in the instant 
case permitted petitioners to date, to cohabit, to favor sexual 
partners of any type or number, to have children out of 
wedlock, to select virtually any relationship except the 
traditional relationship of wife and husband. Among the 
wide array of possible personal lifestyles, the Sixth, Ninth 
and Eleventh Circuits single out marriage as uniquely 
undeserving of constitutional protection. It is inconceivable 
that the framers intended, or could even have imagined, 
such an incomprehensible constitutional rule. If petitioners

conditioned upon a relinquishment of a constitutional right . . . . 
[DJating is a type of association protected by the first amendment’s 
freedom of association. . . . [T]he relationship between Wilson and 
Susan Blackburn was protected by the first amendment freedom of 
association. . . . Wilson was fired for a reason infringing upon his 
constitutionally-protected freedom of association)" 733 F. 2d at 1542- 
44.



26

had joined the Communist Party or a coven which practiced 
Satanism, their actions would have been presumptively 
protected by the Constitution; surely the result can be no 
difference because they chose, instead, to be joined in holy 
wedlock.

We do not suggest that the application of anti­
nepotism policies to spouses is always per se 
unconstitutional. Where the relationship between two 
married employees is that of supervisor and subordinate, the 
government may well have a compelling interest in assigning 
one of the workers to another position. But many nepotism 
policies, like the policy here, are far more sweeping. There 
are numerous instances of policies which exclude one spouse 
from working anywhere in the same agency as another16, or 
even from working for the same city.17 In the instant case,

16Espinoza v. Thoma, 580 F. 2d 346, 347 (8th Cir. 
1978)(prohibition against employment of spouses by Omaha Metro 
Area Transit); Parks v. City of Warner Robins, 43 F. 3d 609, 612 n. 1 
(11th Cir. 1995)(prohibition against marriage by any two supervisors 
in the same department); Parsons v. County o f del Norte, 728 F. 2d 
1234, 1236 n. 2(9th Cir. 1984)(prohibition against hiring any person 
married to an existing employee in same department); Sioux City 
Police Officers’ Association v. City o f Sioux City, 495 N.W. 2d 687, 690 
(Iowa 1993)(prohibition against hiring any person married to an 
existing employee in same department).

llBretz v. City of Center Line, 276 N.W. 2d 617, 617-18 (Mich. Ct. 
App. 1979)(prohibition against employment of spouse of any 
employee of "[a]ny agency, board, body, commission, committee, 
department or office of the city of Center Line"); Voichahoske v. City 
of Grand Island, 231 N.W. 2d 124, 125, 194 Neb. 175 (1975)(defining 
as "conduct prejudicial to the public interest", and thus grounds for 
dismissal, "[c]hanging status, by marriage . . . , which would result in 
more than one person in a household being on the payroll of the city

27

there was no supervisory relationship between the two 
petitioners; they did not even work for the same employer. 
Petitioner Martha Wright played no part in the flying of the 
LifeFlight helicopters, and petitioner John Wright played no 
role in providing medical services. Far from serving a 
compelling governmental interest, respondents’ refusal to 
permit John Wright to fly a helicopter in which Martha 
Wright was treating an emergency patient was so overbroad 
as to fail to satisfy even the minimal rational basis test.

of Grand Island.")



28

CONCLUSION

For the foregoing reasons, a writ of certiorari should 
issue to review the judgment and opinion of the Court of 
Appeals for the Sixth Circuit, and to review before 
judgment1* the appeal now pending in the Sixth Circuit sub 
nom. Wright v. Petroleum Helicopters Inc.

Respectfully submitted,

ERIC SCHNAPPER 
University of Washington 

School of Law 
1100 N.E. Campus Way 
Seattle, WA 98195 
(206) 616-3167 
(Counsel of Record)

BARBARA KAYE BESSER 
BRUCE B. ELFVIN 
Elfvin & Besser 
4070 Mayfield Rd.
Cleveland, Ohio 44121 
(216) 382-2500

Counsel for Petitioners

“This appeal was pending unresolved in the Sixth Circuit as of 
November 28, 1995. If the Sixth Circuit has summarily affirmed that 
appeal prior to the point in time when this Court considers the 
instant petition, the petition will no longer involve a request for 
certiorari before judgment.

APPENDIX