The Supreme Court refused by a vote of 7 to 2 yesterday to review a decision upholding the firing of two public employes for living together in open adultery.
In the disenting opinion, Justice Thurgood Marshall protested that the decision validated "an unwarranted governmental intrusion into the privacy of public employes."
The 3rd U.S. Circuit Court of Appeals made the decision in a case involving Rebecca S. Hollenbaugh and Fred K. Philburn, who were fired in 1973 by the Carnegie Free Library in Connellsville, Pa.
The 3rd Circuit ruling "permits a public employer to dictate the sexual conduct and family living arrangements of its employes, without a meaningful showing that these private choices have any relation to job performance," Marshall wrote in his dissent.
As is customary when a petition for review is denied, the Supreme Court majority acted without giving its reasons. Although Marshall dissented alone, Justice William J. Brennan Jr. noted that he would grant the petition.
The library hired Hollenbaugh as a librarian in 1969 and Philburn as a janitor in 1971. She was divorced and he was married.Their competence in their jobs was undisputed. They had no significant problems with their employer until they were fired.
Hollenbaugh and Philburn met at the library and began to see each other socially. She became pregnant in November 1972. The board, knowing that Philburn was the father, granted her maternity leave.
A month later, Philburn left his wife and moved in with Hollenbaugh. They expressed an intention to live together in an arrangement that was not secret, but that also was not one they advertised.
Some members of the community complained, leading members of the library board to try to persuade the couple to stop living together. Their refusal to do so led to their dismissal. The couple then sued the library on grounds that it had violated their constitutional rights to the equal protection of the laws and to privacy.
U.S. District Court Judge Hubert I. Teitelbaum ruled against them. After what Marshall termed "the most minimal scrutiny," the 3rd Circuit affirmed Teitelbaum's opinion last July.
Teitelbaum said he took no position on the "rightness" or "wrongness" of the living arrangement, which was not illegal in Pennsylvania. Instead, he said, Hollenbaugh and Philburn, as public employes, could be fired at will unless their constitutional rights were violated.Under the so-called "minimum-rationality" test, he said, their rights had not been infringed.
While noting the board's unproven claims that the living arrangement affected Hollenbaugh's work performance and the library's ability to serve the community, the judge said he was unwilling to find the firing arbitrary, unreasonable or capricious.
Marshall said that the library "apparently did not object to furtive adultery, but only to [the couple's] refusal to hide their relationship." The board "sought to force a standard of hypocrisy on [its] employes and fired those who declined to abide by it," he wrote.