Lewell MARCUM, Plaintiff-Appellant, v. James McWHORTER, as interim Sheriff of Pulaski County, Kentucky, Defendant-Appellee, 308 F.3d 635

SILER, J., delivered the opinion of the court, in which MARTIN, C. J., joined. CLAY, J. (pp. 643-46), delivered a separate opinion concurring in the judgment. OPINION SILER, Circuit Judge. Plaintiff Lewell Marcum filed this 42 U.S.C. § 1983 action against the late Sam Catron, in his official capacity as Sheriff of Pulaski County, Kentucky (“Catron” or “Sheriff’), alleging that he was fired as a result of his intimate relationship and cohabitation with a married woman in violation of his right of association as guaranteed by the First and Fourteenth Amendments. He appeals the district court’s order granting

summary judgment in favor of Catron based on its conclusion that his adulterous relationship was not constitutionally protected. For the reasons that follow, we affirm. Background The parties agree that the basic facts in this case concerning the relationship between Lewell Marcum and Rena Abbott are not in dispute. Marcum was hired as a Pulaski County deputy sheriff in February 1986. He separated from his wife on May 8, 1997. Prior to the separation, Marcum lived with his wife and their two children in the martial residence, except for two brief periods in 1996. His divorce was not final until March 11,1999.

During the course of his work as a deputy sheriff, Marcum met Rena Abbott in 1994 or 1995. When the two met, Abbott was married and living with her husband and their children. From the initial meeting until their cohabitation, Marcum and Abbott were just “good Mends” whose respective spouses and families were social acquaintances whose association was marked by family outings and get-togeth-ers. As an informant, Abbott frequently met with Marcum to discuss cases.

At some point, at least by June 1996, their relationship had progressed sufficiently to attract the attention of Chief Deputy Swartz, who counseled Marcum about Abbott’s visits to his office and the courthouse. The relationship had become the subject of rumors in and around both the sheriffs department and the courthouse. Additionally, Sheriff Catron received numerous complaints concerning Marcum’s association with Abbott from employees within his department, as well as persons working at the courthouse and various citizens within the community. The relationship reached a turning point in September 1997.

While on duty on September 4, Marcum informed Abbott that her husband was making passes at her best friend. Abbott asked Marcum to go with her to confront the woman, which he agreed to do. After receiving confirmation of Marcum’s information, Abbott moved out of the marital residence and into her brother’s cottage where she remained with her children until September 9 or 10. During her stay at the cottage, Abbott discussed with Marcum her inability to rent a place of her own and the possibility of their renting a place together, sharing expenses.

There had been no discussion of cohabitation between Mar-cum and Abbott prior to Abbott’s leaving her husband. The two then rented a townhouse and began living together on September 9 or 10. Marcum testified that they were not contemplating sharing a life together, or anything of that nature when they assumed their cohabitation. Abbott testified that at the time they moved into the townhouse, the arrangement was strictly a roommate type relationship with both paying their share of the costs. Marcum also testified that he and Abbott did not engage in sexual relations until after they moved in together.

Abbott’s testimony, however, places the date of their first sexual relations on September 5, the day after she left her husband and prior to her cohabitation with Marcum. Noting this inconsistency, but viewing the facts in the light most favorable to Marcum, the district court found that Marcum and Abbott were romantically involved to some degree when they moved in together. Regardless of their relationship prior to then- cohabitation, it is undisputed that Marcum and Abbott were romantically involved during the time they lived together and certainly at the time of Marcum’s dismissal.

After learning of this living arrangement, Sheriff Catron told Marcum that either he or Abbott would have to move out. Marcum was discharged on September 19, 1997, upon his perceived failure to comply with Catron’s directive. The living arrangement between Marcum and Abbott lasted approximately one month. On October 6, Abbott left to reconcile with her husband. The main reason she cited for leaving was that her oldest daughter did not get along with Marcum.

She also testified that Marcum “was getting too serious and [she] just wasn’t ready for the relationship.” Marcum filed a 42 U.S.C. § 1983 action for wrongful termination against Sheriff Catron, in his individual and official capacity, alleging that he was fired because of his relationship and cohabitation with Abbott in violation of his constitutional rights. The district court dismissed Marcum’s First Amendment claims and his freedom of association claim against Catron in his individual capacity on the grounds of qualified immunity.

The only claims which survived were Marcum’s freedom of association claim against Catron in his official capacity and his pendent state law claims. The court reserved judgment regarding the freedom of association claim. After extending Marcum time in which to develop the facts about the relationship, the district court concluded that Marcum’s extramarital relationship was not entitled to constitutional protection. Accordingly, the court granted

summary judgment against Marcum because he failed to prove an infringement of a constitutionally protected right. Standard of Review We review the district court’s

summary judgment decision de novo. See Watkins v. Battle Creek, 273 F.3d 682, 685 (6th Cir.2001).

Summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Thus,

summary judgment is appropriate if a party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Discussion Marcum maintains that his exclusive, romantic and sexually intimate relationship and cohabitation with a married woman is entitled to protection under the constitutional right of association and, as a result, the Sheriff could not legally fire him for such behavior.

He argues that the district court erroneously dismissed his claim by categorically denying constitutional protection based on its labeling his relationship “adulterous,” offending the spirit of the Constitution and ignoring the factors and analysis set forth by the United States Supreme Court. The two seminal cases defining the right of intimate association that this court must look to for guidance are Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), and Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987).

Roberts explained that the constitutionally protected “freedom of association” has been recognized in the case law in two distinct forms. First, the Supreme Court has identified “a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts, 468 U.S. at 618, 104 S.Ct. 3244.

Next, the Court has recognized a certain right of intimate association reasoning that “choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty.” Id. at 617-18, 104 S.Ct. 3244. The personal relationship at issue in this case does not involve expressive activity.

Rather, this case involves an alleged intrusion by the state into Marcum’s intimate human relationship in violation of his right of intimate association. The Court in Roberts expressed that in order to secure individual liberty, it “must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” Id. at 618, 104 S.Ct. 3244 (citations omitted).

Without precisely defining every consideration underlying this type of constitutional protection, the Court noted that “certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.” Id. at 618-19, 104 S.Ct. 3244. (citations omitted). , The personal affiliations that exemplify the considerations that warrant constitutional protection and suggest limitations on the relationships that might be entitled to constitutional shelter “are those that attend the creation and sustenance of a family,” which “are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.” Id. 619-20, 104 S.Ct. 3244 (citations omitted).

To determine the limits of state authority over an individual’s freedom to enter into a particular association, it is the task of the court to engage in “a careful assessment of where that relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments,” taking into consideration factors that may include “size, purpose, policies, selectivity, congeniality, and other characteristics” that may be pertinent. Id. at 620, 104 S.Ct. 3244.

Rotary added that while the exact boundaries of this type of constitutional protection were not marked, it is not restricted to relationships among family members. See Rotary, 481 U.S. at 545, 107 S.Ct. 1940. The Court emphasized that protection is afforded to those relationships that “presuppose deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life.” Id. (internal quotation marks and citation omitted).

Marcum argues that the district court failed to assess the attributes and qualities of the relationship between him and Abbott. Instead, he contends that the court ignored the factors and analysis set forth in Roberts and Rotary, and focused exclusively on whether the relationship attends the creation or sustenance of a family. Marcum correctly points out that based on the Court’s decision in Rotary, constitutional protection is not limited to family relationships. See id.

The district court, however, noted that relationships afforded this type of constitutional protection are not restricted to those between family members. Moreover, the district court acknowledged the appropriate analysis set forth in Roberts and Rotary and examined the objective characteristics of the relationship between Marcum and Abbott. While there are relationships other than those between family members that may be afforded constitutional protection, it does not follow that any relationship that could be objectively qualified as “intimate” should be protected.

Looking at the factors enunciated in Roberts, 468 U.S. at 620, 104 S.Ct. 3244, and Rotary, 481 U.S. at 545-46, 107 S.Ct. 1940, Marcum contends that the court failed to recognize that the association was relatively small — just the two of them; highly selective in the decision to begin and maintain the affiliation; and others were secluded from the relationship. Based on these objective characteristics and the fact that he and Abbott shared thoughts, experiences and personal aspects of their lives, Marcum argues that the relationship is constitutionally protected under the right of intimate association.

Although these factors may weigh in favor of a finding of a protected relationship, we find that the adulterous nature of the relationship does not portray a relationship of the most intimate variety afforded protection under the Constitution. Marcum claims that the district court erred in finding that the adulterous nature of the relationship in question automatically barred constitutional protection. We disagree. The adulterous nature of Mar-cum’s relationship with Abbott is a fact that must be considered in determining where on the spectrum this relationship lies.

See Roberts, 468 U.S. at 620, 104 S.Ct. 3244 (explaining that objective characteristics of the individual relationship must be considered to determine where that relationship lies on a “spectrum from the most intimate to the most attenuated of personal attachments”). The Supreme Court has set forth factors which may be used in determining whether a particular relationship is constitutionally protected. These factors include: “size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent.” Id.

The adulterous nature of the relationship between Mar-cum and Abbott is an objective characteristic that is pertinent to this case and we find that the district court correctly considered it in determining whether the relationship was constitutionally protected. Next, Marcum contends that the district court’s rebanee on Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), when analyzing the fact that the relationship was adulterous, is misplaced for Bowers was concerned primarily with the right of privacy and the asserted fundamental right to engage in homosexual sodomy.

Furthermore, Marcum points out that Rotary, decided after Bowers, did not cite or restate any propositions found in Bowers when dealing with the right of intimate association. The Court in Rotary was not examining an intimate sexual relationship between two consenting adults and rebanee on Bowers for guidance was unnecessary.

Bowers is extremely instructive in the present case and the fact that the court was addressing another fundamental liberty interest grounded in the right of privacy does not prevent this court from relying on Bowers for guidance when determining whether an adulterous relationship between two consenting adults is constitu-tionaby protected as a fundamental element of personal liberty protected under the freedom of association. See Fleisher v.

Signal Hill, 829 F.2d 1491, 1500 (9th Cir.1987) (explaining that “[a]s appbed thus far in Supreme Court case law, the freedom of intimate association is coextensive with the right of privacy; both the freedom of intimate association and the right of privacy describe that body of rights that protect intimate human relationships from unwarranted intrusion or interference by the state.”). In Bowers, the Supreme Court rejected the proposition that “any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.” Bowers, 478 U.S. at 191, 106 S.Ct. 2841.

Rather, the Court characterized the fundamental liberties recognized in prior decisions qualifying for heightened judicial scrutiny as those that are “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [they] were sacrificed” and “deeply rooted in this Nation’s history and tradition.” Id. at 191-92, 106 S.Ct. 2841 (internal quotation marks and citations omitted).

The Court held that neither of these formulations extended a fundamental right to homosexuals to engage in acts of consensual sodomy, noting that sodomy was a criminal offense at common law and was forbidden by the laws of the thirteen states when they ratified the Bib of Rights. See id. at 192, 106 S.Ct. 2841. Accordingly, it held that a right to engage in this conduct was not deeply rooted in the Nation’s history and tradition or implicit in the concept of ordered liberty. See id. at 194, 106 S.Ct. 2841.

Furthermore, the Court expressed its reluctance to “take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause,” observing that “[t]he Court is most vulnerable and comes nearest to blegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Id.

Bowers is factually analogous to this case in that it evaluates a consensual sexual relationship between two adults and it provides an expansion on the analysis set forth in Roberts and Rotary for cases dealing with private, sexual relationships. Much like sodomy, proscriptions against adultery have ancient roots. Adultery, though not a crime at English common law, was punishable under the canon law, which was administered by the ecclesiastical courts of England. See United States v. Clapox, 35 F. 575, 578 (D.Or.1888); 2 Charles E. Torcia, Wharton’s Criminal Law § 210 (15th ed.1994).

The common law, brought to this country by the American colonists, did not punish adultery unless the conduct was “open and notorious” as to amount to a “public nuisance,” as defined by the English canon law. See Cole v. State, 126 Md. 239, 94 A. 913, 914 (1915); Torcia, supra. The Puritans, however, made adultery with a married woman a capital offense and from this Puritan legacy sprung state laws criminalizing adultery. See Jeremy D. Weinstein, Note, Adultery, Law, and the State: A History, 38 Hastings L.J. 195, 225-26 (1986). Even today, there are jurisdictions which continue to outlaw extramarital acts.

The fact that adultery is no longer illegal in the Commonwealth of Kentucky does not establish that such conduct is a fundamental liberty protected by the Constitution. Based on the historical treatment of adultery, a right to engage in an intimate sexual relationship with the spouse of another cannot be. said to be either deeply rooted in this Nation’s history and tradition or implicit in the concept of ordered liberty.

Thus, following the Supreme Court’s decision in Bowers, we decline to accord Marcum’s adulterous relationship the constitutional protection afforded those intimate associations which receive protection as a fundamental element of personal liberty. Relying on both the language and spirit of Bowers, the court in Mercure v.

Van Buren Township, 81 F.Supp.2d 814 (E.D.Mich.2000), held that the constitutional protections of the First and Fourteenth Amendments, embodied in the right of intimate association, did not extend to a police officer’s adulterous relationship with the wife of a fellow officer; thus, there was no liability under 42 U.S.C. § 1983 for his discharge. See Mercure, 81 F.Supp.2d at 825. The district court found Mercure to be “both informative and persuasive- albeit not binding precedent.” Marcum argues that in Mercure the officer’s relationship with the wife of a fellow officer distinguishes it from the present case.

Additionally, he seeks to distinguish Mercure based on the fact that the court discussed that Michigan law makes adultery a felony, whereas it is no longer illegal in Kentucky. As discussed by the district court, Mar-cum’s efforts to distinguish Mercure do not succeed. The fact that the plaintiffs relationship in Mercure was with the wife of a fellow officer is insufficient to render the court’s reasoning inapplicable here; the Mercure court did not base its decision on the identity of the parties.

Furthermore, as discussed previously, the fact that adultery is legal in Kentucky does not automatically create constitutional protection, nor does it change the fact that historically adultery has been considered a crime in many states, including Kentucky. We agree with the Mercure court’s conclusion that “adulterous conduct is the very antithesis of marriage and family,” and that such behavior cannot be compared to any of the “fundamental matters of personal choice that lie at the core of traditional notions of individual liberty.” Id. at 823 (citation omitted).

Marcum has failed to suggest how his decision to enter into an intimate, sexual relationship and cohabitation with a married woman is a fundamental right deeply rooted in the Nation’s history and tradition or implicit in the concept of ordered liberty. Though perhaps unfair, his dismissal did not infringe his right of association as guaranteed by the First and Fourteenth Amendments. AFFIRMED. . Marcum argues that the ultimate duration of the relationship is not relevant to the determination of whether the relationship was constitutionally protected at the time he was dismissed.

We agree with this assertion and, as the discussion will illustrate, the short duration of the cohabitation is not a factor in our analysis. . Marcum cites a Sixth Circuit case, Corrigan v. City of Newaygo, 55 F.3d 1211 (6th Cir.1995), for the proposition that personal friendships may be protected as a form of freedom of association and, therefore, his exclusive romantic relationship with Abbott is surely protected.

The court in Corrigan, in its initial discussion of the freedom of association and the two types of claims, noted that one type of association is "related to privacy and protected by the due process clause — for example, the freedom of association on which we base family life and personal friendship." Id. at 1214-15.

The court, however, did not analyze or discuss how to determine which personal affiliations fall into the category of protected intimate relationships, as such an analysis was irrelevant to the facts of the case which concerned the right to associate for purposes of engaging in expressive activity protected by the First Amendment. In short, Corrigan is not factually or legally relevant to this case. . See, e.g., Ariz.Rev.Stat. § 13A-1408-1409; Fla. Stat. § 798.01; GA.Code Ann. § 16-6-19; Kan. Stat. Ann. § 21-3507; Mich. Comp. Laws § 750.30; N.C. Gen.Stat. § 14-184; R.I. Gen.

Laws § 11-6-2; S.C.Code Ann. §§ 16-15-60, 16-15-70; Wis. Stat. Ann. § 944.16. . Ky.Rev.Stat. § 436.070, making adultery a criminal offense in the Commonwealth, was repealed in 1974.