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'((@/(-;(A..(4*1B/!>/..%% 7@ /7(%  /7(Plaintiff Lewell Marcum filed this42 U.S.C. § 1983 action against the late Sam Catron, in hisofficial capacity as Sheriff of Pulaski County, Kentucky("Catron" or "Sheriff"), alleging that he was fired as a resultof his intimate relationship and cohabitation with a marriedwoman in violation of his right of association as guaranteedby the First and Fourteenth Amendments. He appeals thedistrict court’s order granting summary judgment in favor ofCatron based on its conclusion that his adulterous relationshipwas not constitutionally protected. For the reasons thatfollow, we affirm.BackgroundThe parties agree that the basic facts in this case concerningthe relationship between Lewell Marcum and Rena Abbott arenot in dispute. Marcum was hired as a Pulaski County deputysheriff in February 1986. He separated from his wife on May8, 1997. Prior to the separation, Marcum lived with his wifeand their two children in the martial residence, except for twobrief periods in 1996. His divorce was not final until March11, 1999.During the course of his work as a deputy sheriff, Marcummet Rena Abbott in 1994 or 1995. When the two met, Abbottwas married and living with her husband and their children.From the initial meeting until their cohabitation, Marcum and'()*+),)
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4Abbott were just "good friends" whose respective spouses andfamilies were social acquaintances whose association wasmarked by family outings and get-togethers.As an informant, Abbott frequently met with Marcum todiscuss cases. At some point, at least by June 1996, theirrelationship had progressed sufficiently to attract the attentionof Chief Deputy Swartz, who counseled Marcum aboutAbbott’s visits to his office and the courthouse. Therelationship had become the subject of rumors in and aroundboth the sheriff’s department and the courthouse.Additionally, Sheriff Catron received numerous complaintsconcerning Marcum’s association with Abbott fromemployees within his department, as well as persons workingat the courthouse and various citizens within the community.The relationship reached a turning point in September1997. While on duty on September 4, Marcum informedAbbott 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 ofMarcum’s information, Abbott moved out of the maritalresidence and into her brother’s cottage where she remainedwith her children until September 9 or 10. During her stay atthe cottage, Abbott discussed with Marcum her inability torent a place of her own and the possibility of their renting aplace together, sharing expenses. There had been nodiscussion of cohabitation between Marcum and Abbott priorto Abbott’s leaving her husband.The two then rented a townhouse and began living togetheron September 9 or 10. Marcum testified that they were notcontemplating sharing a life together, or anything of thatnature when they assumed their cohabitation. Abbott testifiedthat at the time they moved into the townhouse, thearrangement was strictly a roommate type relationship withboth paying their share of the costs. Marcum also testifiedthat he and Abbott did not engage in sexual relations untilafter they moved in together. Abbott’s testimony, however,places the date of their first sexual relations on September 5,3
'()*+),)0DUFXP DUJXHV WKDW WKH XOWLPDWH GXUDWLRQ RI WKH UHODWLRQVKLS LV QRWUHOHYDQW WR WKH GHWHUPLQDWLRQ RI ZKHWKHU WKH UHODWLRQVKLS ZDVFRQVWLWXWLRQDOO\ SURWHFWHG DW WKHWLPH KH ZDV GLVPLVVHG :H DJUHH ZLWKWKLV DVVHUWLRQ DQG DV WKH GLVFXVVLRQ ZLOO LOOXVWUDWH WKH VKRUW GXUDWLRQ RIWKH FRKDELWDWLRQ LV QRW D IDFWRU LQ RXU DQDO\VLVthe day after she left her husband and prior to her cohabitationwith Marcum. Noting this inconsistency, but viewing thefacts in the light most favorable to Marcum, the district courtfound that Marcum and Abbott were romantically involved tosome degree when they moved in together.Regardless of their relationship prior to their cohabitation,it is undisputed that Marcum and Abbott were romanticallyinvolved during the time they lived together and certainly atthe time of Marcum’s dismissal. After learning of this livingarrangement, Sheriff Catron told Marcum that either he orAbbott would have to move out. Marcum was discharged onSeptember 19, 1997, upon his perceived failure to complywith Catron’s directive. The living arrangement betweenMarcum and Abbott lasted approximately one month.%9D-99!%%!? 9/(%/!>7?!// 7//  7 !7 ? % (  	 ! / % E?77 /FG@ ?C/#!.(H%  !/  3, 
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(,I4(4/D2,D2+AD(,))B(	 #@ /7 !/97/?E.!/7 /. ?  7 //!7?/>#?7  #!%/>7.#!/@ /7!?(H/( ( >( ( +DA%B(   ry judgment isappropriate if a party who has the burden of proof at trial failsto make a showing sufficient to establish the existence of anelement that is essential to that party's case.See CelotexCorp. v. Catrett, 477 U.S. 317, 322 (1986).DiscussionMarcum maintains that his exclusive, romantic and sexuallyintimate relationship and cohabitation with a married womanis entitled to protection under the constitutional right ofassociation and, as a result, the Sheriff could not legally firehim for such behavior. He argues that the district courterroneously dismissed his claim by categorically denyingconstitutional protection based on its labeling his relationship"adulterous," offending the spirit of the Constitution andignoring the factors and analysis set forth by the United StatesSupreme Court.The two seminal cases defining the right of intimateassociation that this court must look to for guidance areRoberts v. United States Jaycees, 468 U.S. 609 (1984), andBoard of Directors of Rotary Int’l v. Rotary Club of Duarte,481 U.S. 537 (1987).Robertsexplained that theconstitutionally protected "freedom of association" has beenrecognized in the case law in two distinct forms. First, theD
'()*+),)Supreme Court has identified "a right to associate for thepurpose of engaging in those activities protected by the FirstAmendment--speech, assembly, petition for the redress ofgrievances, and the exercise of religion."Roberts, 468 U.S.at 618. Next, the Court has recognized a certain right ofintimate association reasoning that "choices to enter into andmaintain certain intimate human relationships must besecured against undue intrusion by the State because of therole of such relationships in safeguarding the individualfreedom that is central to our constitutional scheme. In thisrespect, freedom of association receives protection as afundamental element of personal liberty."Id. at 617-18. Thepersonal relationship at issue in this case does not involveexpressive activity. Rather, this case involves an allegedintrusion by the state into Marcum’s intimate humanrelationship in violation of his right of intimate association.The Court inRobertsexpressed that in order to secureindividual liberty, it "must afford the formation andpreservation of certain kinds of highly personal relationshipsa substantial measure of sanctuary from unjustifiedinterference by the State."Id.at 618 (citations omitted).Without precisely defining every consideration underlyingthis type of constitutional protection, the Court noted that"certain kinds of personal bonds have played a critical role inthe culture and traditions of the Nation by cultivating andtransmitting shared ideals and beliefs."Id. at 618-19.(citations omitted). The personal affiliations that exemplifythe considerations that warrant constitutional protection andsuggest limitations on the relationships that might be entitledto constitutional shelter "are those that attend the creation andsustenance of a family," which "are distinguished by suchattributes as relative smallness, a high degree of selectivity indecisions to begin and maintain the affiliation, and seclusionfrom others in critical aspects of the relationship."Id.619-20(citations omitted).To determine the limits of state authority over anindividual’s freedom to enter into a particular association, itis the task of the court to engage in "a careful assessment of'()*+),)
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Iwhere that relationship’s objective characteristics locate it ona spectrum from the most intimate to the most attenuated ofpersonal attachments," taking into consideration factors thatmay include "size, purpose, policies, selectivity, congeniality,and other characteristics" that may be pertinent.Id. at 620.Rotaryadded that while the exact boundaries of this type ofconstitutional protection were not marked, it is not restrictedto relationships among family members.See Rotary, 481U.S. at 545. The Court emphasized that protection is affordedto those relationships that "presuppose deep attachments andcommitments to the necessarily few other individuals withwhom one shares not only a special community of thoughts,experiences, and beliefs but also distinctively personal aspectsof one’s life."Id. (internal quotation marks and citationomitted).Marcum argues that the district court failed to assess theattributes and qualities of the relationship between him andAbbott. Instead, he contends that the court ignored the factorsand analysis set forth inRobertsandRotary, and focusedexclusively on whether the relationship attends the creation orsustenance of a family. Marcum correctly points out thatbased on the Court’s decision inRotary, constitutionalprotection is not limited to family relationships.See id.Thedistrict court, however, noted that relationships afforded thistype of constitutional protection are not restricted to thosebetween family members. Moreover, the district courtacknowledged the appropriate analysis set forth inRobertsandRotaryand examined the objective characteristics of therelationship between Marcum and Abbott. While there arerelationships other than those between family members thatmay be afforded constitutional protection, it does not followthatanyrelationship that could be objectively qualified as"intimate" should be protected.Looking at the factors enunciated inRoberts, 468 U.S. at620, andRotary, 481 U.S. at 545-46, Marcum contends thatthe court failed to recognize that the association was relativelysmall - just the two of them; highly selective in the decisionto begin and maintain the affiliation; and others were secluded2
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'()*+),)fellow officer is insufficient to render the court’s reasoninginapplicable here; theMercurecourt did not base its decisionon the identity of the parties. Futhermore, as discussedpreviously, the fact that adultery is legal in Kentucky does notautomatically create constitutional protection, nor does itchange the fact that historically adultery has been considereda crime in many states, including Kentucky. We agree withtheMercurecourt’s conclusion that "adulterous conduct is thevery antithesis of marriage and family," and that suchbehavior cannot be compared to any of the "fundamentalmatters of personal choice that lie at the core of traditionalnotions of individual liberty."Id.at 823 (citation omitted).Marcum has failed to suggest how his decision to enter intoan intimate, sexual relationship and cohabitation with amarried woman is a fundamental right deeply rooted in theNation’s history and tradition or implicit in the concept ofordered liberty. Though perhaps unfair, his dismissal did notinfringe his right of association as guaranteed by the First andFourteenth Amendments.('()*+),)
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&2,1(,/31+)) A1(12IBAJ.!7EFG..!/ 	 . %!?/%%J>?  7  .>%#: 9  /  % /  7  .>%# /%9  9/# 7  .%    !. ?/ %9#(HB(InBowers, the Supreme Court rejected the proposition that"any kind of private sexual conduct between consentingadults is constitutionally insulated from state proscription."Bowers, 478 U.S. at 191. Rather, the Court characterized thefundamental liberties recognized in prior decisions qualifyingfor heightened judicial scrutiny as those that are "implicit inthe concept of ordered liberty, such that neither liberty norjustice would exist if [they] were sacrificed" and "deeply)
'()*+),)rooted in this Nation’s history and tradition."Id.at 191-92(internal quotation marks and citations omitted). The Courtheld that neither of these formulations extended afundamental right to homosexuals to engage in acts ofconsensual sodomy, noting that sodomy was a criminaloffense at common law and was forbidden by the laws of thethirteen states when they ratified the Bill of Rights.See id.at192. Accordingly, it held that a right to engage in thisconduct was not deeply rooted in the Nation’s history andtradition or implicit in the concept of ordered liberty.See id.at 194. Furthermore, the Court expressed its reluctance to"take a more expansive view of our authority to discover newfundamental rights imbedded in the Due Process Clause,"observing that "[t]he Court is most vulnerable and comesnearest to illegitimacy when it deals with judge-madeconstitutional law having little or no cognizable roots in thelanguage or design of the Constitution."Id.Bowersis factually analogous to this case in that itevaluates a consensual sexual relationship between two adultsand it provides an expansion on the analysis set forth inRobertsandRotaryfor cases dealing with private, sexualrelationships. Much like sodomy, proscriptions againstadultery have ancient roots. Adultery, though not a crime atEnglish common law, was punishable under the canon law,which was administered by the ecclesiastical courts ofEngland.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 bythe American colonists, did not punish adultery unless theconduct was "open and notorious" as to amount to a "publicnuisance," as defined by the English canon law.See Cole v.State, 94 A. 913, 914 (Md. 1915); Torcia,supra. ThePuritans, however, made adultery with a married woman acapital offense and from this Puritan legacy sprung state lawscriminalizing adultery.SeeJeremy D. Weinstein, Note,Adultery, Law, and the State: A History, 38 Hastings L.J.195, 225-26 (1986). Even today, there are jurisdictions which'()*+),)
6HHHJ $UL] 5HY 6WDW  $ )OD 6WDW   *$&RGH$QQ  .DQ 6WDW $QQ   0LFK &RPS /DZV  1& *HQ 6WDW   5, *HQ /DZV   6& &RGH$QQ    :LV 6WDW $QQ  .\ 5HY 6WDW  PDNLQJ DGXOWHU\ D FULPLQDO RIIHQVH LQ WKH&RPPRQZHDOWK ZDV UHSHDOHG LQ continue to outlaw extramarital acts.The fact that adulteryis no longer illegal in the Commonwealth of Kentucky doesnot establish that such conduct is a fundamental libertyprotected by the Constitution.  6/   %!/ !#777J !!.?. %9/9/.!#/'C#//.!%%%.//!9#( !!?7. C/%"?/%!%%/% C / !  !.  % !.%//%?%%>.% /!!.!!9#(Relying on both the language and spirit ofBowers, thecourt inMercure v. Van Buren Township, 81 F. Supp. 2d 814(E.D. Mich. 2000), held that the constitutional protections ofthe First and Fourteenth Amendments, embodied in the rightof intimate association, did not extend to a police officer’sadulterous relationship with the wife of a fellow officer; thus,there was no liability under 42 U.S.C.§1983 for hisdischarge.See Mercure, 81 F. Supp. 2d at 825. The districtcourt foundMercureto be "both informative and persuasivealbeit not binding precedent." Marcum argues that inMercurethe officer’s relationship with the wife of a fellowofficer distinguishes it from the present case. Additionally,he seeks to distinguishMercurebased on the fact that thecourt discussed that Michigan law makes adultery a felony,whereas it is no longer illegal in Kentucky.As discussed by the district court, Marcum’s efforts todistinguishMercuredo not succeed. The fact that theplaintiff’s relationship inMercurewas with the wife of a