US SUPREME COURT DECISIONS

Rebecca S. HOLLENBAUGH and Fred K. Philburn, petitioners,
v.
CARNEGIE FREE LIBRARY et al
No. 78-5519

Supreme Court of the United States

December 11, 1978

On petition for Writ of Certiorari to the United States Court of Appeals for the Third Circuit.

The petition for writ of certiorari is denied.

Mr. Justice MARSHALL, dissenting.

The Court today lets stand a decision that upholds, after the most minimal scrutiny, an unwarranted governmental intrusion into the privacy of public employees. The ruling below permits a public employer to dictate the sexual conduct and family living arrangements of its employees, without a meaningful showing that these private choices have any relation to job performance. Because I believe this decision departs from our precedents and conflicts with the rulings of other courts I would grant certiorari and set the case for argument.

Mr. Justice BRENNAN would grant certiorari.

Page 439 U.S. 1052, 1053

I

Petitioner Rebecca Hollenbaugh served as a librarian and petitioner Fred Philburn as a custodian at the state-maintained Carnegie Free Library in Connellsville, Pa. The two began seeing each other socially, although Mr. Philburn was married at the time. In 1972, Ms. Hollenbaugh learned that she was pregnant with Mr. Philburn's child, and within a month, Mr. Philburn left his wife and moved in with Ms. Hollenbaugh. Due to her pregnancy, Ms. Hollenbaugh sought and was granted a leave of absence by the respondent Board of Trustees from March to September 1973. While petitioners did not conceal their arrangement, neither did they advertise it.

Responding to some complaints from members of the community, the Board of Trustees attempted to dissuade petitioners from continuing to live together. When petitioners refused to alter their arrangement, they were discharged. They subsequently brought this action under 42 U.S.C. 1983 seeking declaratory and injunctive relief and monetary damages.

After a nonjury trial, the District Court found that under the minimum rationality test, petitioners' discharge did not violate the Equal Protection Clause. The court further concluded that petitioners' behavior was not encompassed within the constitutional right to privacy. 436 F. Supp. 1328 (W.D. Pa.1977). The Court of Appeals for the Third Circuit affirmed on the basis of the District Court's opinion. 578 F.2d 1374 ( 1978).

II

I have frequently reiterated my objections to the perpetuation of " the rigid two-tier model [that] still holds sway as the Court's articulated description of the equal protection test." Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 318, 96 S.Ct. 2562d 520 (1976) (MARSHALL, J., dissenting); see, e. g., Marshall v. United States, 414 U.S. 417, 432-433, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974) ( MARSHALL, J., dissenting); San Antonio Independent School Dist. v. Rodri- [439 U.S. 1052, 1054]

Full Text of Opinion