Matusick v. Erie County Water Authority
Filing
OPINION, Concurring, by RJL, FILED.[1164238] [11-1234, 11-1618]
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LOHIER, Circuit Judge, concurring:
I agree with the majority opinion, including its fact‐specific determination
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that the engagement relationship between Scott Matusick and his fiancée, Anita
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Starks, is the type of intimate association protected by the First Amendment. I
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write separately to emphasize that Matusick’s arguments at trial focused on the
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defendants’ efforts to interfere with that relationship and to make clear that the
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engagement relationship is entitled to constitutional protection because it has
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played a “critical role in the culture and traditions of the Nation” since the
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founding. Roberts v. U.S. Jaycees, 468 U.S. 609, 618‐19 (1984).
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As an initial matter, the dissent acknowledges that Matusick and Starks’s
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“choice of each other as marital partners” may be protected by the intimate
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association right, Dissenting Op., post, at 14 (emphasis omitted), but states that
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Matusick did not present his case “on the theory that betrothal was the specific
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protected relationship violated,” id., post, at 16. First, I discern no constitutional
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difference between undermining a person’s choice of marital partner and
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interfering with a betrothal relationship. Second, I disagree with the dissent’s
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characterization of Matusick’s position at trial. The heart of Matusick’s argument
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was that defendants tried to interfere with his engagement relationship.
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Throughout their jury addresses, Matusick’s attorneys stressed that “Matusick’s
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termination was a form of discrimination because of his relationship with his
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wife who was at that time his fiancee,” Joint App’x at 1894, and that “Matusick
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was a victim of discrimination because he was dating and then became engaged
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to an African American woman,” Joint App’x at 2905. At trial, moreover, Starks
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testified that Matusick “acknowledged me as his fiancee” at work and introduced
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her as his fiancée to his supervisor, Robert Mendez. Joint App’x at 1906‐07; see
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Joint App’x at 2101 (Matusick confirming that he told coworkers that he was
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engaged and introduced Stark to some coworkers). The couple described to the
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jury how they fell in love and became engaged.
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Although the Court in Roberts did not list engagement relationships in its
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non‐exclusive roster of “highly personal relationships” that “might be entitled to
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. . . constitutional protection,” 468 U.S. at 618‐19, such relationships surely
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qualify. There is virtually no doubt that the engagement relationship between
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Matusick and Starks is one that the Framers would have recognized (setting
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aside, of course, the issue of miscegenation). Indeed, engagement as a social
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practice and a legally recognized relationship status predates the founding. In
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colonial times, the English law of “spousals” recognized “spousals de futuro” –
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in essence, betrothals – as a well‐established form of contract that could be simple
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or conditional, public or private, and binding upon children and adults alike. See
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Wightman v. Coates, 15 Mass. 1, 6 n.a (1818) (reviewing the enforceability of
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marriage promises under the laws of various European nations). See generally
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Henry Swinburne, A Treatise of Spousals, or Matrimonial Contracts (1686);
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Chester Francis Wrzaszczak, The Betrothal Contract in the Code of Canon Law
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(Canon 1017) 183‐86 (1954). While spousals de futuro were the custom in early
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colonial New England, see Chilton L. Powell, Marriage in Early New England, 1
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New Eng. Q. 323, 327 (1928), the modern social form of engagement replaced
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formal betrothal customs “after a few years of life in the New World,” Alice
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Morse Earle, Old‐Time Marriage Customs in New England, 6 J. Am. Folklore 97,
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101 (1893).
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By the later 1700s American middle‐class social practice with respect to
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marriage involved “courting”— sustained social interaction between the sexes in
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parents’ parlours, community gatherings, group or couples’ outings, and through
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written correspondence. See, e.g., Ellen K. Rothman, Hands and Hearts: A
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History of Courtship in America 22‐26 (1984); see also Anya Jabour, Marriage in
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the Early Republic 13‐14 (1998). The key transition from courting to engagement
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involved the exchange of promises between the engaged. See, e.g., Rothman,
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Hands and Hearts, at 33‐35. Couples would date their engagements from the
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moment of that exchange, and they treated the mutual promises as momentous.
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See, e.g., Jabour, Marriage in the Early Republic, at 18. Engagements could last
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for an extended period of time. See Rothman, Hands and Hearts, at 57‐75. Social
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acknowledgment of an engagement varied, but a private announcement to family
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was common, and the promise itself was nearly universal. Engaged and married
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couples today will recognize many, if not all, of these attributes.
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Engagement promises carried legal and economic as well as social
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significance. American courts recognized the important status of engagement
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and during the eighteenth century began to develop a civil cause of action for
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breach of promise. These actions permitted a woman whose engagement
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promise was breached to recover from a (former) fiancé and were available in
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almost all of the States into the twentieth century. See Rebecca Tushnet, Rules of
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Engagement, 107 Yale L.J. 2583, 2586‐88 (1998); Robert C. Brown, Breach of
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Promise Suits, 77 U. Pa. L. Rev. 474, 474‐75 (1929). Early American courts did not
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require formal indicia of engagement, holding instead that “young persons[’] . . .
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mutual engagements [could be] inferred from a course of devoted attention and
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apparently exclusive attachment, which is now the common evidence.”
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Wightman, 15 Mass. at 5.
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For these reasons I think there is no question that the engagement
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relationship in general and in this case is a “highly personal relationship” entitled
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to constitutional protection.
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