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%  /7( Plaintiff Lewell Marcum filed this

42 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.

Background

The parties agree that the basic facts in this case concerning

the 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, Marcum

met 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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Abbott were just "good friends" whfamilies were social acquaintancemarked by family outings and get-

As an informant, Abbott freque

discuss cases. At some point, at relationship had progressed sufficieof Chief Deputy Swartz, who cAbbott’s visits to his office an

relationship had become the subjeboth the sheriff’s departmenAdditionally, Sheriff Catron receiconcerning Marcum’s associatemployees within his department, at the courthouse and various citize

The relationship reached a tur

1997. While on duty on SeptemAbbott that her husband was makinAbbott asked Marcum to go with hwhich he agreed to do. After rMarcum’s information, Abbott mresidence and into her brother’s co

with her children until September the cottage, Abbott discussed witrent a place of her own and the poplace together, sharing expensediscussion of cohabitation between to Abbott’s leaving her husband.

The two then rented a townhouse 

on September 9 or 10. Marcum tcontemplating sharing a life togenature when they assumed their cohthat at the time they moved arrangement was strictly a roommboth paying their share of the costhat he and Abbott did not engagafter they moved in together. Abbplaces the date of their first sexual 
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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.

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Discussio

Marcum maintains that his exclu

intimate relationship and cohabitatis entitled to protection under thassociation and, as a result, the Shhim for such behavior. He arguerroneously dismissed his claim constitutional protection based on i"adulterous," offending the spirit ignoring the factors and analysis seSupreme Court.

The two seminal cases defini

association that this court must Roberts v. United States Jaycees, Board of Directors of Rotary Int’l 481 U.S. 537 (1987). Robeconstitutionally protected "freedom recognized in the case law in two 
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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 in Roberts expressed that in order to secure

individual 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 an

individual’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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'()*+),) where that relationship’s objective a spectrum from the most intimate personal attachments," taking into may include "size, purpose, policieand other characteristics" that maRotary added that while the exact constitutional protection were not to relationships among family meU.S. at 545. The Court emphasized to those relationships that "presuppcommitments to the necessarily fwhom one shares not only a speciaexperiences, and beliefs but also disof one’s life." Id. (internal quo

omitted). 

Marcum argues that the district 

attributes and qualities of the relaAbbott. Instead, he contends that thand analysis set forth in Roberts 

exclusively on whether the relationsustenance of a family. Marcum based on the Court’s decision 

protection is not limited to family 

district court, however, noted that type of constitutional protection between family members. Moracknowledged the appropriate anand Rotary and examined the objerelationship between Marcum and relationships other than those betwmay be afforded constitutional prothat any relationship that could b

"intimate" should be protected.

Looking at the factors enunciate

620, and Rotary, 481 U.S. at 545-the court failed to recognize that the small - just the two of them; highlto begin and maintain the affiliation
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from the relationship. Based on these objective characteristicsand the fact that he and Abbott shared thoughts, experiencesand personal aspects of their lives, Marcum argues that therelationship is constitutionally protected under the right ofintimate association. Although these factors may weigh infavor of a finding of a protected relationship, we find that theadulterous nature of the relationship does not portray arelationship of the most intimate variety afforded protectionunder the Constitution.

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fellow officer is insufficient to render the court’s reasoninginapplicable here; the Mercure court 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 withthe Mercure court’s conclusion that "adulterous conduct is the

very 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 into

an 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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In Bowers, the Supreme Court re

"any kind of private sexual conadults is constitutionally insulated Bowers, 478 U.S. at 191. Rather, tfundamental liberties recognized in for heightened judicial scrutiny as the concept of ordered liberty, sujustice would exist if [they] wer
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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 and

tradition 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.

Bowers is factually analogous to this case in that it

evaluates a consensual sexual relationship between two adultsand it provides an expansion on the analysis set forth inRoberts and Rotary for cases dealing with private, sexual

relationships. 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. 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

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Relying on both the language 

court in Mercure v. Van Buren Tow(E.D. Mich. 2000), held that the cothe First and Fourteenth Amendmeof intimate association, did not exadulterous relationship with the withere was no liability under 42 discharge. See Mercure, 81 F. Supcourt found Mercure to be "both inalbeit not binding precedent." Mercure the officer’s relationship officer distinguishes it from the phe seeks to distinguish Mercure court discussed that Michigan law whereas it is no longer illegal in K

As discussed by the district co

distinguish Mercure do not sucplaintiff’s relationship in Mercur