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Ninth Circuit decision could lead to SCOTUS showdown over your right to a private sex life

Holly Clancy, February 12, 2018

On Friday, the Ninth Circuit—the federal appeals court for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington—decided that, contrary to what two other circuit courts have said, sex is a constitutional right such that the state cannot fire an employee for private sexual conduct.

In this most recent case out of Roseville, California, Janelle Pérez, previously a probationary officer, sued the police department after being fired for adultery.

P[é]rez was discharged after an internal affairs investigation into her romantic relationship with a fellow police officer. She claims that her termination violated her constitutional rights to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct.

The Ninth Circuit sided with Pérez. Here’s its helpful summary:

[T]he panel held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.

The Ninth Circuit’s ruling has significantly increased the odds of a Supreme Court showdown. Although the Supreme Court denied certiorari (or turned down) an appeal in an  earlier adultery case in December, that was before there was disagreement among the lower courts. Now that the Ninth Circuit has created a circuit split, the Supreme Court is more likely to step in to resolve a question. The preceding cases are also similar enough to create a clean opportunity for review.

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