GODBOLD, Senior Circuit Judge, dissenting in which BAKE, Circuit Judge, and KRAVITCH, Senior Circuit Judge, join: The court en banc has pretermitted decision of whether Shahar has constitutional rights of intimate association or expressive association. Instead it assumes that she enjoyed such rights and decides that these presumed rights have not been violated because the Attorney General acted reasonably in "revoking [Shahar's] employment offer." [FN1] FN1. I assume it would make no difference in this court's decision, but the Attorney General did not revoke an "employment offer." He had offered employment and the offer had been accepted, but the date on which work was to begin was left open. Before that date was fixed the Attorney General canceled the employment agreement. I would grasp the nettle and hold that in the particular circumstances of this case Shahar enjoyed rights of intimate association and expressive association and that the Attorney General violated those rights because he did not act reasonably in revoking the agreement made with Shahar. [FN2] FN2. The district court and all three members of the panel agreed that Shahar enjoyed protected intimate association rights. The district court did not address expressive association. Shahar does not assert a right to be married as provided by the laws of Georgia (statutory or common law), or to be issued a marriage license, or to inherit from her spouse, or to be entitled to social security benefits through her spouse. She does not question the constitutionality of the Georgia marriage license statute or any provisions of Georgia law that speak in terms of marriage as a ceremony, or as a status, between persons of different sexes. Nor does she question the validity of Georgia principles of common law marriages. As the panel of this Court held in its now-vacated opinion: What Shahar claims is that she proposed to -- and did -- engage in a Jewish religious ceremony that is recognized as a marriage ceremony by the branch of Judaism to which she adheres; that this conferred upon her and her partner a religious-based status that is apart from and independent of civil marriage as provided by Georgia law; and that she can accept, describe, and hold out both the ceremonial event and the status created by it by using the term "marriage." 70 F.2d at 1222. In P 1 of her amended complaint Shahar alleged that she was "fired" because of her participation "in a private religious ceremony of marriage." The rabbi performed a "Jewish marriage ceremony," P 7, followed by "a weekend celebration of Jewish marriage," a "private religious marriage ceremony," P 8 Plaintiff and her partner considered their "planned religious marriage" an important event, P 9. In P 10 Shahar disclaimed any claim of civil or legal marriage pursuant to law. That paragraph alleged: 10. Plaintiff does not believe and has at no time represented either that her religious union with her partner carries with it any legal rights or that it constitutes a legal (civil) marriage. The ceremony was of purely religious nature. The religious and historical roots of the associational rights that Shahar defends were spelled out in the panel opinion. Because that opinion has now been vacated, they deserve to be repeated. The intimate association Shahar asserts is not based upon false or sham assertions of religious belief, or hasty decision, of overnight conversion. She and her partner grew up in traditional Jewish families. Shahar attended Hebrew school from the third grade. She was bat mitzvahed at age 13 and continued in Hebrew school until she was confirmed at age 16. Greenfield grew up in a conservative, kosher, Jewish home. She went through Jewish training through high school, attended Jewish summer camps, and was involved in Jewish youth groups. Shahar and Greenfield have been significant participants in the life of their synagogue, located in Atlanta. It is affiliated with the Reconstructionist Movement, one of several movements within Judaism. The synagogue serves gays, lesbians, and heterosexuals. The Reconstructionist Movement is regarded as liberal in some respects but is conservative in others. Shahar has led services at the synagogue and has given several sermons. She and Greenfield often attend together. The proposed ceremony was announced at a service of the synagogue. Their rabbi, Sharon Kleinbaum, counseled them in eight or nine formal premarital sessions and many informal ones. Rabbi Kleinbaum described the manner in which she satisfied herself of their commitment to the Jewish faith. She discussed with them "the seriousness of their commitment to the Jewish issues as well as to each other, and anything related to wedding ceremonies in general that, as a Rabbi, I would do." Dep. p. 82. Continuing, she said, "I discussed with them the nature of their home life and the significance of Jewish practices to them and how it was inconceivable to them to do any kind of ceremony that was not a Jewish one." Id. at 83.. Rabbi Kleinbaum considers that the union in which they joined is a public affirmation of their commitment to each other and to the Jewish people, having no legal significance but only personal and religious significance, and that it can be terminated only by the church. The evidence demonstrates without dispute that same-sex marriage is accepted within the Reconstructionist Movement of Judaism, that Shahar and her partner are committed to that belief, and that, in keeping with their Jewish principles, they carefully and thoughtfully prepared for marriage. 70 F.2d at 1222-23. The evidence discloses that Judaism in the United States does not have a monolithic view of same-sex marriages. The Reconstructionist Movement accepts the concept of same-sex marriage, and many rabbis within the Movement perform such marriages. The Reconstructionists are working on a manual that will help guide rabbis performing same-sex marriages. Other movements in.judaism reject same-sex marriages, and still other movements are divided in view, with some rabbis performing such marriages and others declining to do so. But the critical facts are that Shahar and her partner are lifelong adherents to Judaism and good-faith, dedicated participants in the Reconstructionist Movement; the Reconstructionist Movement is a significant movement within American Judaism; and it regards same-sex marriages as acceptable and desirable in preference to couples living together without marriage. The actual ceremony between Shahar and Greenfield occurred after the Attorney General terminated the agreement with her, but it is relevant to the fact that her association has religious basis and status. It was the culmination of a weekend of religious-centered activities that began Friday evening with a celebration of the Hebrew Sabbath, which extends from Friday evening to Saturday evening. The wedding occurred on Sunday. Essentially the ceremony followed the traditional ceremony for a heterosexual Jewish couple except for deletion of terms "bride" and "groom." It took place beneath the traditional canopy. The couple signed the traditional Kutubah, or written marriage contract. They exchanged rings in traditional fashion, and the traditional glass was broken. The traditional seven blessings were given, done in Hebrew and in English. Rabbi Kleinbaum was dressed in traditional garb. She described the event as a "Jewish religious ceremony," as a "Jewish marriage," and as a "Jewish wedding." In her testimony Rabbi Kleinbaum explained the importance of the family to the survival of the Jewish people and the significance of the Jewish marriage ceremony to the creation of the family unit. Therefore, as she explained, the commitments made by Shahar and her partner through the marriage ceremony were not only commitments to each other but to their congregation and to all of the Jewish people as well. The Attorney General did not act reasonably. One must focus on what he knew and what he did. Post-event rationalizations of what he might have done, thought up afterwards in ivory towers, will not do. Two statements are central, the termination letter and the Attorney General's statement of position made to the panel of this court. The termination letter said in part: This action has become necessary in light of information which has only recently come to my attention relating to a purported marriage between you and another woman. As the chief legal officer of this state inaction on my part would constitute tacit approval of this purported marriage and jeopardize the proper function of this office. 70 F.2d at 1221. The Attorney General's position before the panel was expressed in a significant three-prong statement: The Attorney General did not withdraw Shahar's offer of employment because of her association, religious or otherwise, with other homosexuals or her female partner, but rather because she invoked the civil and legal significance of being "married" to another woman. Shahar is. still free to associate with her female partner, as well as other homosexuals, for religious and other purposes. Id. at 1224, quoting from the Attorney General's brief. Examine the three prongs. They are: (1) Shahar's employment was not withdrawn for her association with her partner; (2) It was withdrawn because she invoked the civil and legal status of being married to another woman; (3) She is free to associate with her partner for religious reasons. As to (1), the undisputed evidence is that in fact the Attorney General did terminate Shahar because of her religious-based association with her partner. As I explain below, he feared that he might be infringing on Shahar's religious beliefs, but he failed to make reasonable inquiry to determine if he was. As to (3), plainly Shahar was not free to associate with her partner for religious purposes. That is exactly what she had done, and it cost her her employment agreement. The prong that requires discussion is (2). The termination letter is plainly based on the Attorney General's conclusion that Shahar was falsely holding herself out as becoming married in the civil and legal sense, i.e., proposing to engage in a "purported marriage." In search of evidence of holding out by Shahar this court relies upon her use of the words "marriage" and "wedding." This implicates differing perceptions of what words mean. In a common law/statutory/traditional sense "marriage" describes a ceremony as a relationship or status between two persons as defined by common law or statute, involving two heterosexual persons, one male and one female. But, as this case tells us, that is not the only and ineluctable meaning. To a person of Shahar's faith as a Reconstructionist Jew "marriage" refers to the formal Jewish wedding ceremony recommended and carried out pursuant to the participants' Jewish faith by two persons (including two homosexuals) who have made a lifelong commitment to each other and are bound to each other by the ceremony in a relationship that can be terminated only within their faith and who, by engaging in the ceremony, made a commitment to the Jewish people as well. "Marriage" also refers to the status thereby conveyed upon them. In the eyes of Shahar and her partner they engaged in a Jewish marriage and they are accepted by their faith as married and accordingly they may use the term "marriage" to refer to the ceremonial event and to the status created by it. This court, in its footnote 1, recognizes the duality of meaning that I have described for "wedding" and "marriage" [and "spouse"]. Throughout its opinion the court attempts to indicate (not always successfully) by quotation marks and limiting words which meaning it is referring to. But the decision of the en banc court is based upon, and approves, the Attorney General's attribution to these words of only a single meaning, the statutory/common- law/traditional meaning, and his perception that any other meaning is either false or non-existent, i.e., Shahar proposed to engage in a "purported marriage." The court simply adopts one perception and excludes the other as though it did not exist for Shahar and for others of her faith. What the Attorney General knew was that Shahar had used the terms "marriage" and "spouse" and "marriage ceremony" in referring to the ceremony she planned and to the status to be created by it. She had used the terms "honeymoon" or "wedding trip" in describing her plans. Within the office there was information that she planned to send, or had sent, invitations to the ceremony and that some staff members were on the invitation list, and other information that, as the Attorney General described it, the planned ceremony would be "a big or church wedding, I don't remember which." Possessed of some, or all, of this knowledge, the Attorney General neither saw Shahar nor talked to her but built a Chinese wall around himself and concluded that she had falsely invoked the civil/statutory/common-law meaning that he attributed to the terms. We know that it occurred to him that assigning a single meaning to "marriage" and "wedding ceremony" might not be correct, for he talked with a female Jewish member of his staff, who told him that the wedding was to be performed by a rabbi from New York who performed homosexual marriages but that "she was not aware of homosexual marriages or gay and lesbian marriages being recognized in Judaism." At best the response was ambiguous -- on the one hand the wedding was to be done by a rabbi, but on the other hand the staff member was not aware that it would be recognized in Judaism. As it turned out, she was correct about the rabbi but incorrect or uninformed about recognition of the marriage. Since the Attorney General neither saw nor talked with Shahar the decision by this court relies upon information supplied to him by senior staffers who had talked with him. The Attorney General was out of town when the matter first came up. Senior staffers met together several times and discussed their concerns and possible action. The group considered, but rejected, a suggestion that there be a meeting with Shahar to discuss the matter. After the Attorney General returned he met with staffers. He reached the conclusion that the job offer should be withdrawn. In a meeting with staffers the structure of a "termination meeting" with Shahar was worked out. The Attorney General would not be present at the meeting. A designated staffer (accompanied by a witness) was to meet with Shahar, tell her that the offer to her was withdrawn. and deliver to her the termination letter (in sealed form). The messenger was instructed to make no additional comments and to tell Shahar if she had comments they should be addressed to the. Attorney General in writing. The staff member-spokesman prepared a written script of what he would say. Ironically, it concluded: "Thanks again for coming in and have a nice day." The scenario was played out. Shahar asked to see the Attorney General and wan told that he was unavailable. The Attorney General and his staff acted in ignorance of the religious roots of the association that Shahar planned, the centrality of it to her faith, and the recognition of it by the religion to which she was committed. Staff members could recall no discussion of or inquiry into the religious aspects of the matter. The actions by the Attorney General do not meet the constitutional requirements of reasonableness. [FN3] FN3. This court also suggests that Shahar held herself out as "married" in the statutory/common-law/traditional sense because she and her partner were granted (presumably on a homeowners or auto insurance policy) an insurance rate available to married women. But the undisputed evidence is that Shahar talked to her insurance agent, explained the relationship between her and her partner, and asked if the rate was available to them. The insurance company afforded them that rate. This was no false "holding out," no pretext of marriage in the legal sense. Indeed, it was the contrary. Shahar told the agent the facts of her relationship. If this incident tends to prove anything it is that the insurance company, possessed of facts, recognized and accepted the duality of meaning of "marriage" and for its purposes accepted that Shahar was a married woman. This court also refers to joint ownership of a home as "holding out." Under Georgia law joint ownership does not require marital status. O.C.G.A. secs. 44-6-120 and 44-6-190. It is unclear when the insurance matter occurred. Joint ownership of the house existed before this case arose. It is clear that the Attorney General did not rely on either of these factors or even know of them. If the Attorney General had made reasonable investigation this case might never have arisen. But not only did he make no further investigation, he closed the door to knowledge. It would have been easy to confer with Shahar, or have an assistant do so, and explore her desire to use the term "marriage" and his concern about this usage. If she had then explained that she used the term as recommended and accepted by her faith, the Attorney General, correctly enlightened, might have been satisfied. On the other hand, he might have rejected her explanation as insufficient to ameliorate his concerns. He might have explained to her his fear of possible impact on his office and could have explored with her ways in which she might disseminate knowledge of the religious nature of her intimate association. What we do know is that neither the Attorney General, nor the staff members on whom this court implies that he relied, made inquiry into the religious nature of her plans beyond the ambiguous or mistaken response from the single Jewish staff member of whom the Attorney General inquired. The Attorney General walled himself off, forbade comment or inquiry by staff members who net with Shahar, and terminated the agreement with Shahar on his erroneous perception of the association that she was asserting. Whatever his views about possible adverse effects on his office, he did not act reasonably. Respectfully, I dissent. KRAVITCH, Senior Circuit Judge, dissenting, in which BARKETT, Circuit Judge, GODBOLD, Senior Circuit Judge, join: I adhere to the view, previously expressed in my opinion in the now-vacated panel decision of this case, that the district court: (1) correctly recognized that Shahar's relationship with her partner qualifies as a protected intimate association under the First Amendment; and (2) erroneously concluded that, on the record of this case, Bowers's legitimate interests as a public employer outweighed Shahar's constitutionally-recognized, associational interests. Accordingly, I dissent from the en banc court's affirmance of the district court's grant of summary judgment to Bowers. I begin by noting what this case does not concern. It does not involve a claim that homosexuals have a constitutional right to marry in the civil or legal sense. Shahar used words, such as "marriage" and "wedding", in a generic, not a legalistic, sense when she described her relationship with her partner. [FN1] FN1. Such generic meanings are an established part of the English language. Webster's New Collegiate Dictionary (1979) at 698 (giving "an intimate or close union" as one definition of marriage), 1318 (noting that wedding is defined, inter alia, as 'an act, process, or instance of joining in close association"). Due to her religious beliefs, these words also took on a spiritual character for Shahar, but she never contested her ineligibility for the legal benefits of a civil marriage under Georgia law. As a result, the court is not called, as the en banc majority implies in Footnote 2 of its opinion, to engage the 'constitutional controversy" over the "institution of marriage." [FN2] FN2. Certainly, it would have been more prudent for Shahar to have consistently used terms, such as "commitment ceremony" and "partnership", to refer to her relationship. Shahar's use of language, however, does not transform this case into a debate over traditional marriage, particularly given that she only used the controversial terms with members of Bowers's staff in two conversations and on one conflict of interest form. The first issue properly before the court is whether Shahar's relationship with her partner qualifies as an intimate association under the Constitution. The Supreme Court has held that the First Amendment protects those relationships, including family relationships, that presuppose "deep attachments and commitments to the necessarily few other individuals with whom one shares a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life." Bd. of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 545 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984)). This court has applied the intimate association doctrine expansively to cover not only well-established familial bonds, but also dating couples. See Wilson v. Taylor, 733 F.2d 1539 (1 1th Cir.1984) (ruling that non-marital relationship between police officer and daughter of reputed, organized crime figure is protected intimate association). Shahar's relationship with her partner satisfies the Supreme Court's definition of an intimate association in that it is characterized by `relative smallness, a high degree of selectivity in decisions to begin and maintain an affiliation, and seclusion from others in critical aspects of the relationship.' Roberts, 468 U.S. at 620. In light of this court's ruling in Wilson and the Supreme Court's ruling in Roberts, I conclude that Shahar's relationship with her partner qualifies as a protected intimate association under the First Amendment. [FN3] FN3. Bowers apparently recognizes that Shahar's relationship with her partner meets the objective characteristics of an intimate association outlined in Roberts and its progeny, and therefore, he contends a further requirement applies, namely that the relationship in question must fall within the category of associations traditionally endorsed by society at large. In support of this argument, Bowers cites FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), a case in which the Supreme Court upheld the constitutionality of a local licensing ordinance for motels that rented rooms for periods of less than 10 hours. In so ruling, the Court observed that associations `formed from the use of a motel room for fewer than 10 hours are not those that have 'played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.' " Id. at 237. In my view, the foregoing statement stands for the proposition that superficial relationships fail to qualify as intimate associations under the Constitution, not for the proposition that courts should deny recognition to deep-seated relationships which are, or have been, unpopular. Because Shahar's relationship with her partner unquestionably constitutes a close, ongoing interpersonal association, not an hours-long encounter, FW/PBS does not undermine her claim for constitutional protection. I agree with the en banc majority that the right of intimate association is not absolute, and that in the public employment context adverse actions which implicate intimate associational interests should be reviewed pursuant to the balancing test first enunciated in Pickering v. Bd. of Educ., 391 U.S. 563 (1968). See Stough v. Gallagher, 967 F.2d 1523, 1527 (11th Cir.1992) (ruling that under Pickering "courts must balance the [protected First Amendment] interests of the public employees as citizens ... and the interest of the "State as an employer, in promoting the efficiency of the public services it performs through its employees" (quoting Pickering, 391 U.S. at 568)). In my view, however, the en banc majority has employed a balancing test in name only. [FN4] FN4. The en banc majority properly recognizes that as the chief law enforcement officer in Georgia, Bowers's legitimate concerns for the functioning of his staff carry special weight in the Pickering balance. I believe, however, that the en banc majority goes further, and inappropriately grants virtually absolute deference to Bowers, without weighing the countervailing interests on which he impinges. Such an approach categorically exempts Bowers's employment decisions from scrutiny, and therefore, is inconsistent with well-established authority mandating particularized decision-making in this context. See, e.g., Bates v. Hunt, 3 F.3d 374, 378 (11th Cir.1993) ("[W]hether a governmental employer has improperly infringed on an employee's First Amendment rights turns on the specific facts of the particular case: a `case-by-case' analysis is required."). The en banc majority's opinion devotes paragraph after paragraph to Bowers's interests, but gives short shrift to Shahar's intimate associational interests. In contrast, Judge Godbold's dissenting opinion eloquently relates the sincerity and depth of feeling which underlies Shahar's connection to her partner. Because the association in question falls close to the familial end of the continuum of human relationships, I conclude that Shahar's interests weigh heavily in the Pickering balance. See Roberts, 468 U.S. at 620 (contrasting family ties with large business enterprises in observing that various associational bonds support "greater and lesser claims to constitutional protection"). On the other side of the balance, the en banc majority first considers Bowers's interests in the internal workings of his office. Bowers has not asserted that Shahar's association caused any actual disruption of the functioning of his staff. Instead, Bowers has forecast that Shahar's presence will undermine morale and create divisions within the Georgia Department of Law because some employees will view her association as a political statement inconsistent with state laws that the Department must enforce. The en banc majority correctly notes that courts must give "substantial weight to government employers' reasonable predictions of disruption ..." Waters v. Churchill 114 S.Ct. 1878, 1887 (1994). The Supreme Court, however, has rejected the notion that courts must accept blindly all claims of harm conjured by government employers: On the other hand, we do not believe that the court must apply the [balancing] test only to the facts as the employer thought them to be, without considering the reasonableness of the employer's conclusions. Even in situations where courts have recognized the special expertise and special needs of certain decisionmakers, the deference to their conclusions has never been complete.... We think employer decisionmaking will not be unduly burdened by having courts look to the facts as the employer reasonably found them to be. It may be unreasonable, for example, for the employer to come to a conclusion based on no evidence at all. Likewise, it may be unreasonable for an employer to act based on extremely weak evidence when strong evidence is clearly available--if, for instance, an employee is accused of writing an improper letter to the editor, and instead of just reading the letter, the employer decides what it said based on unreliable hearsay. Id. at 1889 (emphasis in original). To the extent Bowers concluded Shahar would disrupt the office because her relationship could be interpreted as a political statement, he did not act reasonably. Shahar's association with her partner, although not secret, was private. Shahar's religious marriage ceremony was by invitation and was held in another state. It was neither announced in the newspapers, nor otherwise reported publicly. [FN5] FN5. The fact that Shahar did not publicize her relationship similarly undercuts Bowers's claim that Shahar showed poor judgment. Further, Shahar never claimed she had contracted a legal marriage, nor did she challenge her legal ineligibility for civil marriage. Bowers could and should have ascertained all of these facts before he took action against Shahar. Instead, as Judge Godbold notes in his dissent, Bowers categorically refused to discuss his purported concerns with Shahar. Finally, the record confirms that Bowers had no factual basis to believe Shahar had violated the law or advocated violations of law. [FN6] FN6. In fact, Bowers testified that he "didn't know whether [Shahar] violated the law or not," Bowers Dep. at 67, and that he didn't "know the nature of the sexual relation[s between Shahar and her partner], if any," id. at 69. Bowers failed to act reasonably; under Waters, his predictions regarding intra-office strife do not weigh very heavily in the balance. Bowers's other main justification for his action centers around his fear of negative public reaction to his hiring of Shahar. Although public confidence certainly is a relevant concern for Bowers, it is important to note that catering to private prejudice is not a legitimate government interest. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 (1985); Palmore Sidoti, 466 U.S. 429, 433 (1984). The en banc majority attempts to justify its emphasis on anticipated public hostility by pointing to McMullen v. Carson, 754 F.2d 936 (11th Cir.1985), a case in which this court considered public reaction to the presence of a Ku Klux Klan recruiter in a sheriff's office in affirming a governmental employment decision. McMullen, however, bears no relationship to this case. First, unlike McMullen, where the employee publicized his association with the Klan on a television news broadcast, in this case, Shahar did not make any public statements. Further, the sheriff's decision in McMullen was not simply based on his prediction that the public would be biased against the Klan-affiliated employee. Rather, the record established that "violent racism has become the Klan's trademark ... [that] [d]ivisive, confrontational tactics are used by the Klan during periods of racial unrest in order to promote recruitment [and that] [t]hose tactics are still being used in Florida." McMullen, 754 F.2d at 938 (emphasis added). The sheriff and the community thus reasonably could conclude that the Klan recruiter sanctioned such inflammatory, often illegal, activities. In contrast, Bowers simply baldly asserted that public reaction to Shahar's pending employment with his office would have prevented him from serving the state effectively. In light of the Klan's undisputed history of criminal violence, public reaction in McMullen was not only more certain, but also likely would have been more severe than anything which reasonably might have been projected in this case. Finally, although public concern over the Klan's criminally violent activities is a legitimate basis for governmental action, the Supreme Court has now held that animosity toward gay people is an illegitimate purpose for state policy, and thus, to prevail in the balancing of interests, Bowers must cite more than perceived, public distaste for homosexuals. See generally Romer v. Evans, 116 S.Ct. 1620, 1629 (1996). The foregoing analysis leads me to conclude that, on the record of this case, Shahar's constitutional interest in pursuing her intimate association with her partner outweighs any threat to the operation of the Georgia Department of Law. Accordingly, I would reverse the district court's order granting summary judgment against Shahar. [FN7] FN7. Because I conclude Shahar's other claims would not warrant relief beyond that to which Shahar would be entitled pursuant to her intimate association claim, I do not address any other issues raised in this appeal. For these reasons, I respectfully dissent. BIRCH, Circuit Judge, dissenting: I respectfully dissent. Shahar's relationship with her partner qualifies as a protected intimate association under the First Amendment for the reasons set out in Judge Kravitch's dissent, pages 2-3. I agree with both the majority and dissent that, in a government employment context, the Pickering balancing test is the appropriate test for reviewing official action which implicates First Amendment intimate associational rights. See Pickering v. Board of Educ., 391 U.S. 563 (1968). I might have found the majority's application of the Pickering balancing test more convincing were it not for the Supreme Court's recent decision in Romer v. Evans, 116 S.Ct. 1620 (1996). In my opinion, the Court's recognition in Romer that homosexuals, as a class, are entitled to some protection under the Equal Protection Clause bears on the validity -- and therefore the weight in applying the Pickering balancing test -- of Bowers's justifications for his action. With Romer in the balance, the scales tip decidedly in favor of Shahar because Bowers's asserted interests are not a legitimate basis for infringing Shahar's constitutionally-protected right of intimate association. For this reason, I dissent from the en banc court's affirmance of the district court's order granting summary judgment to Bowers. In Romer, the Supreme Court held that a Colorado constitutional amendment which discriminates against homosexuals does not pass constitutional muster. Romer, 116 S.Ct. at 1627. The Court did not decide the issue of whether homosexuals constitute a suspect class because the Colorado law which was at issue in Romer failed even under the rational basis inquiry. See id. at 1627. The import of Romer, however, is to elucidate what the Supreme Court considers not to be a rational basis for discrimination against homosexuals. [FN1] FN1. Although the discriminatory conduct that occurred in Romer arose in a different factual context than this case, I disagree with the majority's attempt to distinguish Romer to the extent that it finds it to be wholly irrelevant. The reasoning and principles enunciated in Romer are, in my view, highly relevant to this case and provide a directive that, at least, should inform our analysis. The state argued that the rationale for the law included "respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality." Id. at 1629. Over a vigorous dissent by Justice Scalia, a six-justice majority of the Court rejected the state's rationale, declaring that "animosity toward the class" of homosexuals is not a legitimate basis for state action. Id. at 1628; see id. at 1629 (Scalia, J., dissenting) ("In holding that homosexuality cannot be singled out for disfavorable treatment, the Court ... places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias."). I am compelled to conclude that the Court's pronouncement in Romer must inform our consideration of Shahar's intimate association claim. The Pickering balance in this case requires us to measure Shahar's right of intimate association against Bowers's asserted interests in infringing that right in the context of an employment relationship. The weight we accord to Bowers's asserted interests, however, hinges entirely on the reasonableness of his predictions as to how Shahar's homosexual relationship might affect or disrupt the Attorney General's office, see Waters v. Churchill, 114 S.Ct. 1878, 1887-89 (1994); significantly, it is undisputed that Bowers has made no showing of actual disruption to the office. When we closely examine these predictions, we discover that each one is based on a series of assumptions and unsupported inferences about Shahar because of her status as a homosexual. [FN2] FN2. The distinction that the majority draws between Shahar's status as a homosexual and her conduct in entering into a homosexual marriage, see Majority op. at [47 n. 271, is truly a distinction without a difference, in my opinion. It is a matter of simple logic that only homosexuals would enter into a homosexual marriage. Bowers's action, therefore, draws a distinction that, on its face, reaches homosexuals only and distinguishes among similarly situated people on the basis of one trait only: that they are homosexual. Bowers cannot escape this conclusion by subdividing the class of homosexuals into those who elect to enter into a homosexual marriage and those who do not, and then claiming that he discriminated against Shahar not because of her status as a homosexual, but because she is a homosexual and she entered into a homosexual marriage. The Supreme Court's decision in Loving v. Virginia, 388 U.S. 1 (1967) is instructive on this point. In Loving, the Supreme Court struck down as unconstitutional Virginia's anti-miscegenation statute. As the state of Virginia argued, that statute was not directed at a specific race. Id. at 7-8. Yet, the Supreme Court concluded in Loving that the statute did invoke a racial classification, id. at 8-9, notwithstanding the fact that it applied only to blacks and whites who engaged in the "conduct," Majority op. at [47 n. 27], of marrying a person from another race. This case is no less about classification on the basis of sexual orientation than Loving was about classification on the basis of race. According to the manifest logic of Loving, therefore, Bowers's action drew a classification along lines of sexual orientation. With the advent of Romer, such a classification has a significant effect on the Pickering balancing equation. In his special concurrence, Judge Tjoflat agrees with the majority that the record does not support an inference that Bowers's decision was based on Shahar's homosexual status. Considering the fact that the briefs as well as all the opinions in this case are riddled with references to Shahar's homosexual status and the reasonableness -- or non-reasonableness -- of Bowers's inferences from that status, I find it difficult to understand how we can seriously contend that an inference of discrimination on the basis of homosexual status cannot be made. The special concurrence attempts to avoid the equal protection dimension of this case by using a cramped view of causation. See ante at [13] ("A reasonable trier of fact could find from the record in this case that the Attorney General's decision was motivated not by the fact that Shahar is a homosexual, but because she and her partner were maintaining an open homosexual relationship."). It is easy to appreciate this by imagining, as the special concurrence suggests, see ante at [14], that Shahar had been dismissed because she was a white woman that married a black man, and replacing references to homosexuality by references to race in both the majority and concurring opinions. For example, the footnote which accompanies the above quoted text from the special concurrence, see ante at [13 n. 9], would have stated: "A reasonable trier of fact could also find that the Attorney General withdrew Shahar's offer because he could not trust her; during a telephone conversation in June 1991, Shahar misled Deputy Attorney General J. Robert Coleman into believing that she was going to marry a [white] male. A reasonable trier of fact could also or alternatively find that the Attorney General, as he explained to the Dean of the Emory Law School in a letter contained in the record of this case below, withdrew the offer because he thought that Shahar had set him up and planned to use him to advance a [racial-equality] agenda." A clearer violation of the Equal Protection Clause hardly could have been presented. I cannot agree with the majority that these inferences and assumptions constitute a legitimate state interest to discriminate against Shahar in light of the Supreme Court's teaching just last term that mere "animosity toward the class" of homosexuals is not a rational basis for state action. Romer, 116 S.Ct. at 1628. The first inference that Bowers drew from Shahar's status as a lesbian who married [FN3] FN3. In connection with Shahar's relationship with her partner, I am using the words "married" or "marriage" in their generic sense of a committed, intimate union. It may be important to note that at no time has Shahar violated Georgia law by entering into a homosexual marriage. A Georgia law that was enacted in 1996, almost five years after Shahar was dismissed by Bowers, declares that Georgia does not recognize same-sex marriages. See O.C.G.A. s 19-3-3.1 (Supp.1996); see also O.C.G.A. s 193- 30(b)(1) (Supp.1996) ("No marriage license shall be issued to persons of the same sex."). Shahar has not sought to obtain a marriage certificate or to have her marriage legally recognized by the state of Georgia. another woman is that the public might be hostile to her participation in a same-sex marriage and might view Shahar's employment by his Department as inconsistent with Georgia law. Bowers argued in his brief that "the public perception is that "the natural consequence of a marriage is some sort of sexual conduct, 2E.. and if it's homosexual, it would have to be sodomy.' " Appellee's Panel Brief at 10-11 (quoting Bowers Dep. at 80-81). [FN4] FN4. In the face of Shahar's evidence of statistical studies showing that lesbians prefer to engage in non-sodomy sexual practices, rather than anal or oral sex -- the only two practices prohibited by Georgia's sodomy statute -- , Bowers argues that the public is not aware of these statistics and that, therefore, the public's erroneous assumptions about lesbians take precedence. Erroneous assumptions about a person, however, are not a rational basis for discriminating against that person, even if these erroneous assumptions are wide-spread and are religiously-based. See Romer, 116 S.Ct. at 1629. As the Supreme Court made clear in Palmore v. Sidoti, 466 U.S. 429 (1984), the government may not transform private biases into legitimate state interests by relying on the prejudices of the public. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. "Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private ... prejudice that they assume to be both widely and deeply held." Id. at 433 (quoting Palmer v. Thompson, 403 U.S. 217, 260-61 (1971) (White, J., dissenting)); see also City of Clerburne v. Clerburne Living Ctr., 473 U.S. 432, 448 (1985) (applying the principle of Palmore to government action reviewed under the rational basis test). In applying the principle of Palmore to this case, the key question is not whether the government official reasonably could assume that the public might have a negative reaction to the employee's presence; it is whether the public's perception upon which the official relies is itself a legitimate basis for government action. If the public's perception is borne of no more than unsupported assumptions and stereotypes, it is irrational and cannot serve as the basis of legitimate government action. [FN5] FN5. For this reason, the majority's citation to McMullen v. Carson, 754 F.2d 936 (11th Cir.1985), in which a state official relied on anticipated public reaction as a basis for dismissing a Klu Klux Klan recruiter from a sheriff's office, is misplaced. In light of the Klan's undisputed history of criminal violence against minorities in this country, I can hardly imagine anyone would argue that the public's assumption that membership in the Klan is antithetical to the work of an employee of a law enforcement agency is irrational. In this instance, the public's (alleged) blanket assumption that "if it's homosexual, it would have to be sodomy" is based not on anything set forth in the record but rather on public stereotyping and animosity toward homosexuals. Under the principles articulated in Romer, this does not provide the state with a legitimate, rational basis to discriminate against Shahar. Bowers's "concern" for the public's perception of homosexuals, therefore, is entitled to no weight in balancing Shahar's right of intimate association. Bowers also asserts an interest in dismissing Shahar under the broad rubric of concern for the internal workings of his office. Bowers advances two main arguments in support of this interest: (1) Shahar's conduct might undermine the "morale" of the office because some employees might view her conduct as a political statement inconsistent with Georgia's laws criminalizing sodomy and denying public benefits to couples engaged in same-sex marriages; and (2) as Attorney General, Bowers is justified in assuming not only that Shahar would violate Georgia law by committing sodomy but, moreover, that she necessarily would have a conflict of interest with respect to certain types of controversial cases involving sodomy or benefits for same-sex partners. Bowers's argument with respect to the alleged deleterious effect of Shahar's status and conduct on "morale" within the office is another attempt to legitimize his adverse action against Shahar on the basis of inferences that others -- here, his employees -- might derive from her status as a lesbian. The inferences from Shahar's acknowledged homosexuality that she is likely to violate Georgia's sodomy law, or would be unable or unwilling to enforce Georgia's sodomy or marriage laws, is no more justified on behalf of Bowers or his employees than it is on behalf of the public. Moreover, it is important to note that Bowers's speculation regarding Shahar's ability to handle certain types of cases is just that: speculation. Bowers has emphatically refused to meet with Shahar to discuss any of his concerns. Compounding this deficiency in Bowers's assertion that his prediction is "reasonable" is the fact that Bowers does not make the same assumption with respect to any of his other employees: He does not assume, for instance, that an unmarried employee who is openly dating an individual of the opposite sex has likely committed fornication, [FN6] FN6. In Georgia, "[a]n unmarried person commits the offense of fornication when he voluntarily has sexual intercourse with another person." O.C.G.A. s 16-6-18. I trust that no one would find unreasonable, in the colloquial sense of the word, the assumption that Georgia's fornication law is frequently disregarded by the citizenry of Georgia or perhaps even the unmarried staff of its Department of Law. criminal offense in Georgia, and thus may have a potential conflict in enforcing the fornication law. Nor, for that matter, does he apparently assume that married employees could well have committed sodomy -- i.e., oral or anal sex, see O.C.G.A. sec. 16-6-2 -- and could themselves have a potential conflict in enforcing Georgia's sodomy law. [FN7] FN7. In the context of a habeas petition by a married heterosexual convicted of sodomy, Moseley v. Esposito, No. 89-6897-1 (Super. Ct. Dekalb Co.), Bowers's Department of Law moved to strike the petitioner's motion to discover whether any of Bowers's attorneys had themselves ever violated the sodomy law because "the personal conduct [of Department attorneys] is no more relevant than the personal conduct of Petitioner's counsel or the Court." R2-35-Exh. B at 2 (Brief in Support of Motion to Strike and Expunge in Moseley ); see also id. at 4 ("the information [Moseley] seeks has nothing to do with professional impropriety, but rather is wholly irrelevant.... "). Bowers has no reason for believing that Shahar's personal conduct would affect her abilities to ethically represent the state, except based on an impermissible inference from her status as a homosexual. Lawyers are trained to be advocates of legal positions with which they may personally disagree. In short, Bowers's asserted interests in taking adverse action against Shahar are based on inferences from her status as a homosexual which Bowers claims that he, the public, and department staff are entitled to make. In light of the Supreme Court's decision in Romer, these status-based inferences, unsupported by any facts in the record and explained only by animosity toward and stereotyping of homosexuals, do not constitute a legitimate interest that outweighs Shahar's First Amendment right of intimate association. Accordingly, I would reverse the district court's order granting summary judgment to Bowers. BARKETT, Circuit Judge, dissenting, in which GODBOLD and KRAVITCH, Senior Circuit Judges, join: The majority opinion does not meet the constitutionally required process for determining when the government as employer may curtail a public employee's First Amendment rights. It departs not only from Supreme Court precedent establishing that process, but from this circuit's precedent in applying the process to analogous factual contexts. Since Pickering, the Supreme Court and several circuits (including this one) have applied its principles in several First Amendment contexts, including privacy, [FN1] FN1. See Fyfe v. Curlee, 902 F.2d 401 (5th Cir.), cert. denied, 498 U.S. 940 (1990). free exercise of religion, [FN2] FN2. See Brown v. Polk County, 61 F.3d 650, 658 (8th Cir.1995)(en banc). and freedom of association. [FN3] FN3. See Gregorich v. Lund, 54 F.3d 410, 414 & n. 4 (7th Cir.1995); Boddie v. City of Columbus, Miss., 989 F.2d 745, 748 (5th Cir.1993); Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546, 1559 (11th Cir.1987). These cases make clear that while the balancing test is easier for the government to satisfy than the strict scrutiny standard used in the nonemployment context, it still affords significant protection from unwarranted government intrusion into an employee's First Amendment interests. As Judge Godbold and Judge Kravitch so clearly demonstrate, notwithstanding its references to the Pickering test, the majority simply fails to apply the test in the instant case. Instead, the majority permits a government employer to support termination decisions predicated on the employee's exercise of First Amendment rights with only a minimal and totally subjective rationale and without considering the rights of the employee in the balance. In effect, the majority grants overwhelming, if not complete, deference to the Attorney General's subjective views. See Majority Op. at 27 and 42 ("whatever our individual, personal estimates might be, we ... cannot say that the Attorney General's worries and view of the circumstances that led him to take the adverse personnel action against Shahar are beyond the broad range of reasonable assessments of the facts;" and "We must defer to Georgia Attorney General's judgment about what Georgians might perceive unless his judgment is definitely outside of the broad range of reasonable views"). The only purported support offered by the majority for its wholesale restructuring of Pickering appears to be its reading of the plurality opinion in Waters v. Churchill, 114 S.Ct. 1878 (1994). However, the sole issue in Waters was "whether the Connick test should be applied to what the government employer thought was said, or to what the trier of fact ultimately determines to have been said." Id. at 1884. Thus it simply addressed the method for resolving factual disputes as to whether the affected employee engaged in protected conduct. [FN4] FN4. In answering that question, the Waters plurality made two observations that the majority overlooks. First, the plurality stated that it did not believe that balancing must be applied only to the facts as the employer perceived them, without considering the reasonableness of the employer's conclusions. Id. at 1889. According to the plurality, "even in situations where courts have recognized the special expertise and special needs of certain decision makers, the deference to their conclusions has never been complete." Id. Second, the plurality stated that "it may be unreasonable, for example, for the employer to come to a conclusion based on no evidence at all ... [and] likewise, it may be unreasonable for an employer to act based on extremely weak evidence when strong evidence is clearly available." Id. Indeed, the Court's reasoning in Waters supports Shahar's position. The Court held that the facts as found by the employer after "objectively reasonable investigation" should establish whether the conduct (in that case, speech) was constitutionally protected. Id. at 1892 (Souter, J., concurring, summarizing plurality opinion). Waters asserts Pickering 's principles and reiterates the necessity for constitutionally enforced processes to protect the rights of government employees. The Pickering test necessitates a careful, fact-intensive, structured inquiry to "balance the interests of the public employees, as citizens" in engaging in expression, "and the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees." Stough v. Gallagher, 967 F.2d 1523, 1527 (11th Cir.1992)(internal quotations omitted). In granting overwhelming deference to an employer's subjective decision to terminate, the majority ignores a well developed body of circuit precedent that applies the Pickering balancing test in analogous law enforcement contexts and establishes a workable balance between the employee's exercise of First Amendment rights and measured deference to law enforcement officials. See Stough, 967 F.2d at 1523; McCabe v. Sharrett, 12 F.3d 1558 (11th Cir.1994); Waters v. Chaffin, 684 F.2d 833 (11th Cir.1982); McMullen v. Carson, 754 F.2d 936 (11th Cir.1985). Stough involved a sec. 1983 suit where a newly elected sheriff was sued after demoting a police officer who had campaigned for another candidate, On appeal, in balancing the competing interests, the court noted that the officer had engaged in political speech which deserves "special protection" from the First Amendment, that the officer had spoken during his off-duty hours, and that the expressions were not rude or insulting. Stough, 967 F.2d at 1529. The court also noted the absence of actual evidence that the expression adversely affected the sheriff's work environment, and the fact that the sheriff had previously indicated that personal loyalty was not a prerequisite for the affected officer's job. Id. at 1529. In McCabe, the issue was whether a police chief could permissibly transfer a personal secretary who married a lower-level police officer. The court indicated that, under Pickering, "the employer's interest will weigh more heavily in the Pickering balance the more closely the challenged employment action serves the employer's interest in the efficient and effective functioning of the office." McCabe, 12 F.3d at 1570. The court noted that the police chief produced substantial evidence that "loyalty and keeping confidences are required for proper performance of the job" from which the personal secretary was transferred and his concerns about possible disloyalty were not merely subjective fears, but "objectively reasonable" as a matter of common experience. Id. at 1571-73. Thus, the court afforded no deference to the police chief's view, and conducted its balancing based on an objective assessment. In Waters v. Chaffin, the court considered whether a police chief could discipline a subordinate police officer for criticizing him in an off-duty conversation with another police officer. The court noted that the fact that "the employee who speaks out is a police officer does not mean that the balance is always struck in favor of the state. `Policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.'" Id. at 836 (quoting Garrity v. New Jersey, 385 U.S. 493, 500 (1967)) (emphasis added). Although the court recognized that the law enforcement context justified allowing a police chief to act on reasonable predictions of harm, rather than actual evidence of harm, it also indicated that this rule is less appropriate when the chief officer and the affected officer do not work closely together, stating that "we will not allow a generalized concern to overshadow the realities of the case." Chaffin, 684 F.2d at 83940. In addition, the court gave added weight to the fact that the subordinate's expression occurred off-duty. Id. at 837-38. Finally, as Judge Kravitch describes, the McMullen court considered whether a police chief could fire a low-level at-will clerical employee in the wake of strong community protests following an employee's announcement on television that he was a recruiter for the Ku Klux Klan. In weighing the balance of interests, the court noted the uncontradicted evidence that black citizens would categorically distrust the sheriff's office if a known Klan member were allowed to remain on staff, and that the sheriff had "no less restrictive means of dealing with the problem." McMullen, 754 F.2d at 939. The court also noted that public perception of the Klan as a violent racist group was based on the reality of the Klan's history, and that absent immediate action on the Sheriff's part, "serious conflict was almost certain to occur." Id. at 938-39. The court then conducted an "independent and complete review of the record," affording special weight to the task of a law enforcement agency, but not to the Sheriff's assessment of what was reasonable. Id. at 940. After conducting this review the court concluded that: [t]he reaction of a community cannot always dictate constitutional protections to employees. We hold only that a law enforcement agency does not violate the First Amendment by discharging an employee whose active participation in an organization with a history of violent activity, which is antithetical to enforcement of the laws by state officers, has become known to the public and created an understandably adverse public reaction that seriously and dangerously threatens to cripple the ability of the law enforcement agency to perform effectively its public duties. Id. at 940. Instead of relying on the holdings in these cases, the majority references McMullen, Sims v. Metropolitan Dade County, 972 F.2d 1230 (11th Cir.1992), Kinsey v. Salado Independent School Dist., 950 F.2d 988 (5th Cir.1992) (en banc ), Bates v. Hunt, 3 F.3d 374 (11th Cir.1993), and Pickering generally for the proposition that "government employees who have access to their employer's confidences or who act as spokespersons for their employers, as well as those employees with some policy-making role, are in a special class of employees and might seldom prevail under the First Amendment in keeping their jobs when they conflict with their employers." Majority Op. at 19. However, the cases cited by the majority simply do not support this proposition. From McMullen, the majority draws the conclusion that a law enforcement official may act based on public perception and anticipated effect. But the majority ignores the fact that the McMullen court's conjectures about future harm were based on present, actual adverse public reaction to the affected employee's conduct. It also disregards the importance McMullen places on assessing the validity of public perceptions and the nature of the effect those perceptions would have on law enforcement. Indeed, McMullen supports the proposition that a government official cannot hide behind public perception as a means to enforce private prejudice. See also Palmore v. Sidoti, 466 U.S. 429, 433 (1984)("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."). Sims addressed the question of the quantum of evidence necessary to overcome qualified immunity with a Pickering-based claim. See Sims, 972 F.2d at 1236. Because an individual seeking to overcome qualified immunity must show that an official has violated clearly established law, the Sims majority held that the plaintiff in that case had to make the extraordinary showing that "Pickering balancing would lead to the inevitable conclusion that the discharge of the employee was unlawful." Id. at 1237. To the extent that Sims is even relevant in other contexts, it does not stand for the broad proposition offered by the majority, since the case states only that "when the employee serves in a sensitive capacity that requires extensive public contact, the employee's private speech may pose a substantial danger to the agency's successful functioning." Id. This assertion, of course, should not be shorn from its context -- namely, a case in which the Pickering analysis was purposefully conducted with a "thumb" on the government side of the scale because of the plaintiff's extraordinary burden in overcoming qualified immunity, an issue not on appeal in this case. Kinsey v. Salado Indep. School Dist., 950 F.2d 988 (5th Cir. 1992) (en banc), is also largely inapposite, as that Fifth Circuit case involved the authority of a school board to remove the superintendent of schools, a position second only to the school board itself in terms of policy-making authority. More particularly, Kinsey involved a conflict of political affiliation between the two highest ranking education policy makers in the county. It thus cannot be read as support for the notion that "employees with some policy- making role [ ] are in a special class of employees and might seldom prevail under the First Amendment," Majority Op. at 19 (emphasis added). The final case cited by the majority is Bates v. Hunt, 3 F.3d 374 (11th Cir.1993). Bates arose from the decision of the Alabama Governor to fire an at-will political appointee in his Office of Constituent Affairs for signing an affidavit supporting a disgruntled former employee who had sued the Governor. The court determined that the essence of the appointee's job was to speak and act as a delegate of the Governor to his constituents. Bates, 3 F.3d at 378. Concluding that the Governor was not required to let an adversary represent him, the court found that the Governor's discharge of the appointee did not unconstitutionally burden the appointee's speech rights. As in Kinsey, the court in Bates tightly connected the particular job functions of the affected employee to the grounds for dismissal, a task the majority here ignores. The political affiliation case law from the Supreme Court and this circuit simply cannot support the majority's broad assertion that government employees with "some policy-making role" enjoy only minimal job security when "they conflict with their employers." Majority Op. at 19-20. In the leading political affiliation case, Branti v. Finkel, 445 U.S. 507 (1980), the Supreme Court squarely rejected a chief public defender's attempt to terminate two disfavored assistant public defenders because they held confidential policy making positions. In so ruling, the Court stated that "the ultimate inquiry is not whether the label 'policy maker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518. [FN5] FN5. The Court also recounted the rationale the district court advanced to rebut the idea that the assistant public defenders were appropriately viewed as policy making, confidential employees subject to discharge solely on the basis of their political affiliations. According to the district court, although the assistants had broad responsibilities with respect to particular cases that were assigned to them, they had limited, if any, responsibility for the overall operation of the office. Branti, 445 U.S. at 511. 'They did not act as advisors or formulate plans for the implementation of the broad goals of the office, and although they made decisions in the context of specific cases, they do not make decisions about the orientation and operation of the office in which they work." Id. (internal quotations omitted) The district court also noted that the assistants "did not occupy any confidential relationship to the policy making process, and did not have access to confidential documents that influenced policy making deliberations." Id. Many of the same statements could be made about Shahar as a staff attorney. To the extent, then, that policy making authority and confidentiality legitimately provide the Georgia Attorney General with a basis for deference in this case, it does not follow that all attorneys in his office have similar policy making authority or similar confidential relationships with the Attorney General. Drawing an analogy to the current context, Branti teaches that the ultimate inquiry for balancing purposes is not the nature of the job Shahar was assigned to, but whether the Attorney General can demonstrate that Shahar's intimate association hinders her ability to effectively perform the job of a staff attorney. The majority never considers how Shahar's relatively low status in the Attorney General's Office affects the balance, but instead implicitly treats all of the attorneys in the office as having equal responsibilities. It also overlooks the analysis of the district court in the Branti decision, which suggests that an assistant attorney's exercise of policy making authority and access to confidential information is not always of the sort that lessens his or her protected interests. See supra note 5. Additionally, in the absence of any record evidence of "weighing" or "balancing" by the Attorney General, the majority attempts to provide after-the-fact reasons to support Bowers's side of the scale. Referencing a controversy in Georgia over issues related to homosexuality and "the Attorney General's involvement at the heart of that controversy " (Majority Op. at 24 n. 16)(emphasis added), the majority cites to four state court decisions decided after Shahar's termination (three of which did not involve the Attorney General's office), and three short Attorney General opinion letters, also written after Shahar's termination. However, the majority fails to mention post-termination evidence of Shahar's apparently successful performance within the legal community as a staff lawyer for the City of Atlanta. [FN6] FN6. Moreover, to the degree that Georgians have opinions about homosexuality, the law suggests their opinions are at least mixed. In Georgia's largest city, Atlanta, for instance, elected officials have passed a municipal ordinance prohibiting discrimination on the basis of sexual orientation. See City of Atlanta v. McKinney, 454 S.E.2d 517, 519 (Ga.1995). See also, In the Interest of R.E.W., 471 S.E.2d 6 (Ga.Ct.App.) (granting gay father unsupervised visitation rights with his child), cert. denied, 472 S.E.2d 295 (Ga.1996). Similarly, the majority indicates that the public might reasonably conclude that Shahar engages in sodomy, and that such a belief would undermine the Department's efforts to enforce Georgia's "laws against homosexual sodomy" (Majority Op. at 25). The relevant Georgia statute, however, does not define sodomy in terms of sexual orientation. [FN7] FN7. See Ga. Stat. sec. 16-6-2(a) ("A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.") The public can not reasonably assume therefore that homosexuals in the Attorney General's office are more likely to engage in prohibited activity than any other member of that office. While overemphasizing the Attorney General's concerns in the Pickering balance, the majority also discounts Shaaar's interests. The majority never expressly identifies Shahar's claims that she has kept her relationship with her partner a largely private and decidedly low-key matter, and that she has not engaged in any conduct which is at odds with Georgia law. See Majority Op. at 30-33. [FN8] FN8. Although McCabe and McMullen also involved off-duty conduct, other factors, not present here, weighed in the balance against the employee in those cases. Given the fact that it is not illegal in Georgia for two women to own a house in common, purchase insurance together or even exchange rings, it is difficult to understand how the fact that someone might discover these things could possibly affect the ability of the Attorney General to do his job effectively -- the Attorney General is simply not charged with ensuring that his employees refrain from obtaining the blessing of their religious leaders prior to co-habitating in Georgia (which is essentially all Shahar has done. [FN9] FN9. Georgia's recently enacted ban on same-sex marriages does not alter this analysis. Even if we assume that the statute is constitutional, it simply states that individuals who are involved in same-sex unions are not entitled to the full panoply of benefits available to individuals who are involved in opposite-sex unions. See O.C.G.A. sec. 19-3-3.1. In so doing, the new statute implicitly acknowledges the right of same-sex couples to use the word "marriage" to describe their relationships. See O.C.G.A. sec. 19-3-3.1(b) ("No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage.") Finally, I believe that the Attorney General has an evidentiary burden to offer credible predictions of harm or disruption based on more than mere speculation. The Attorney General's "worry about his office being involved in litigation in which Shahar's special personal interest might appear to be in conflict with the State's position" is simply not a reasonable basis upon which to expect disruption. First, the record contains no evidence that homosexual issues in general constitute a "special personal interest" for Shahar. Indeed, Shahar was intended for an assignment involving the review of death penalty cases. Moreover, even if Shahar has a "special personal interest" in homosexual rights, such an interest tells us nothing about its disruptiveness to her work environment. Surely the Attorney General's office has lawyers who have a "special interest" in any number of topics: abortion, school desegregation, affirmative-action or rights for the disabled, for instance. When those issues arise and the Attorney General is forced to take a view, some attorneys may personally disagree with that view and may even ask not to work on the matter, but that does not establish that those views have been disruptive to the office as a whole. Absent hard evidence, it is difficult to imagine a court upholding, for example, an Attorney General's assertion that he fired a black attorney because he believed (assumed?) that attorney's "special interest" in desegregated schools would prove disruptive to the office. For these reasons, I respectfully dissent.