Why The U.S. Supreme Court Should Have Chosen to Review A Florida Gay Adoption Case:
The Law At Issue Was Invidious, and the Case Offered a Chance to Clarify a Key Precedent

By JOANNA GROSSMAN


lawjlg@hofstra.edu
----
Wednesday, Jan. 12, 2005

This Monday, January 10, the U.S. Supreme Court declined to grant review in a controversial case, Lofton v. Secretary of the Department of Children and Family Services. The case concerned a Florida state law - one unlike any other in the nation -- that bans any homosexual from adopting a child. It is plain that the law arose out of anti-gay bias.

Because the Supreme Court declined review, the decision of the U.S. Court of Appeals for the Eleventh Circuit - upholding the statute as constitutional - will stand. As a result, gay adults in Florida will continue to be ineligible to adopt children.

In addition, the scope of the Court's 2003 decision in Lawrence v. Texas -- which struck down as unconstitutional a Texas ban on same-sex sodomy -- will remain uncertain.

Florida's Gay Adoption Ban: Singling Out Only One Group To Disfavor

The Florida law at issue, enacted in 1977, states that: "No person eligible to adopt under this statute may adopt if that person is a homosexual." (Florida courts have interpreted this statute to apply only to "practicing" homosexuals.) There have been several, unsuccessful attempts in the Florida legislature to repeal the statute, but it remains the law.

The origins of the statute have been widely noted -- including, eloquently, in a column by FindLaw columnist Joanne Mariner. It was enacted amid a vocal anti-gay campaign by celebrity Anita Bryant, which sought, among other things, to "Save Our Children" from gay parents.

Gays are the only group categorically excluded from adopting in Florida. As a brief filed by the Child Welfare League of America noted, Florida allows adoptions, for example, by those who are single, disabled, divorced, and even, in some cases, by convicted felons.

The Status of Gay Adoption Across the Country

Across the country, the laws governing whether gay adults may adopt children remain in flux. But the trend is clearly in favor of permitting such adoptions.

Twelve states, and the District of Columbia, expressly permit such adoptions, either through statute or court decisions. In many other states, adoption agencies have approved adoptions by gay adults, without any express court ruling on the issue. Overall, the result is that in most states, gays and lesbians are today able to adopt.

Three separate sub-issues have arisen: May a single, gay person adopt a child? May a gay couple adopt a child jointly? May one partner in a gay couple adopt the other partner's child?

Typically, the sub-issue of whether gay individuals can adopt has proven relatively uncontroversial. In New York, for example, gay individuals have long been able to adopt.

But the other sub-issues may cause more controversy: As I discussed in an earlier column, 2004 marked the first New York court decision affirmatively approving a lesbian couple's joint adoption of a child who was not biologically related to either partner.

Meanwhile, however, also in 2004, in In re Luke, the Nebraska Supreme Court prohibited a lesbian from adopting her partner's child, on the ground that the biological mother had not surrendered her parental rights.

On the other end of the spectrum are states like Mississippi and Utah. Both have recently passed statutes prohibiting same-sex couples from adopting.

No state, however, goes as far as Florida - which, as noted above, disallows all gay individuals from adopting, regardless of the circumstances.

The Origins of the Lofton Case: Three Gay Couples Seek To Adopt

Steven Lofton is a registered pediatric nurse who had served as a foster parent for three children from Florida (as well as several others in another state).

Lofton petitioned to adopt one of the children, a boy, born HIV-positive, for whom he had provided careful cared since the child was two months old. At eighteen months, while in Lofton's care, the child had "sero-reverted" - that is, begun to test negative for HIV.

In his petition to adopt, Lofton refused to answer the question about his sexual orientation. He also failed to disclose that he had - and lived with - a gay partner, Roger Croteau.

Lofton's application to adopt was rejected based on the Florida law banning gay adoption. Lofton - along with other gay couples with an interest in adopting children - then sued. They argued that, for a number of different reasons, the Florida statute was unconstitutional.

The District Court Decision Lofton Is Followed by the Lawrence Ruling

The federal district court ruled against the plaintiffs. It rejected all their constitutional challenges, and it refused their request that it certify a class of all similarly situated would-be adoptive parents.

But then the United States Supreme Court issued its opinion in Lawrence v. Texas. Lawrence stopped short of naming the right to engage in consensual sexual acts "fundamental." But it struck down Texas' sodomy ban, and it did so using sweeping, broad language about the importance of according constitutional protection to "adult persons in deciding how to conduct their private lives in matters pertaining to sex."

As I have written in a prior column, the majority opinion in Lawrence, read as a whole, makes clear that the Court is according strong protection to an individual's right to sexual intimacy. Accordingly, Justice Scalia, in dissent, suggested that, as a result of Lawrence, all laws regulating sex or sexual orientation are now in jeopardy.

Despite Lawrence, The Eleventh Circuit Wrongly Ruled Against Would-Be Gay Adopters

Yet despite the Lawrence decision, the Eleventh Circuit still ruled against the Lofton plaintiffs. Its reasoning, in doing so, was deeply unpersuasive.

First, the panel concludes that simply because the Supreme Court did not use the word "fundamental" in Lawrence, it did not recognize sexual intimacy to be a fundamental right. (Indeed, the panel notes that it found Lawrence's "language and reasoning …inconsistent with standard fundamental-rights analysis.")

But as I argued in my previous column, this tone-deaf reading of Lawrence is unconvincing. At the very minimum, Lawrence made clear that there is strong constitutional protection for private sexual conduct. And this, in turn, strongly implies that the government cannot penalize its citizens for being "practicing" homosexuals. Yet that is exactly what the Florida law does, by punishing those who engage in gay sex by banning them - and only them - from adopting children.

Second, the panel opinion clearly misuses language from Lawrence about minors. The Court in Lawrence listed a number of factors not present in that case. It did so to emphasize that certain sexual or sex-related practices could continue to be prohibited, as long as they involved the following: minors (read: statutory rape), coercion (read: rape), public conduct (read: public lewdness), prostitution, or public or governmental recognition of the relationship (read: gay marriage).

Lawrence held that a state could not criminally punish sodomy. The question the Court meant to answer with its litany of factors was: What could a state criminally punish? Among the acts listed was the act of sex with a minor - whether same-sex or opposite-sex.

But the appellate panel in Lofton bizarrely took the Court's reference to "minors" here to refer not to sex with minors, but rather to gay adoption. This interpretation not only clashes with Justice Kennedy's language, it makes little sense. Surely the Supreme Court did not mean that Lawrence is inapplicable in any case in which a child plays a role.

And for other reasons, Lawrence would seem to be squarely applicable here. The liberty interest embraced in Lawrence was the freedom of adults to order their private lives in the ways they see fit. Adoption is part of building a life, and a family; as is choosing to cohabit and coparent with a partner of the same-sex.

Moreover, the constitutional right Lawrence protected was that of autonomy and personhood. There a few choices more integral to one's autonomy, and to one's self-definition, than the choice to adopt a child--especially one for whom one has provided lifelong care.

Invoking strong arguments like these, plaintiffs petitioned for the case to be reheard en banc (that is, by the entire Circuit). But their petition missed success by a single vote. Then, as noted above, they sought U.S. Supreme Court review - and lost again.

Why the Supreme Court Should Have Reviewed Lofton

The Supreme Court should have reviewed Lofton.

Granted, the case does not present a split among federal circuits about the proper interpretation or application of a federal statute or constitutional right - a typical reason for the Court to grant review. Since Florida's statute is unique, other circuits have not faced the question. Its uniqueness may have done in its chances for review.

But review of the case would have allowed the Court to elaborate on Lawrence. It would also have allowed the Court to make clearer the meaning of Romer v. Evans -- a case striking down an anti-gay statute in Colorado.

The court held in Romer, applying equal protection principles, that legislation cannot survive even rational basis review if "it is born of animosity toward the class of persons affected." ("Rational basis" review is the lowest constitutional standard of review the Supreme Court applies - asking only that a challenged law have a rational basis. But recently, the Supreme Court has made clearly that certain laws do fail even rational basis review.)

Given the openly anti-gay origins of Florida's law, it would have been hard for the Supreme Court to find the law constitutionally valid. If any law was "born of animosity" toward gays, it is this Florida statute.

Banning Gay Adoption Is Cruel to Children, and Contrary to Studies

Thousands of Florida children wait to be adopted. Many gay adults already serve as foster parents for these children. But Florida's law stands in the way of their adopting them, and offering them a permanent, stable, family home.

Not only was the Florida law born of bias, it is directly contrary to science. A significant number of studies, which I have discussed in a column for this site, suggest that children with gay parents "fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual."

The verdict is in: Permanent, legally binding parental relationships serve the interests of children, regardless of the parent's sexual orientation. Thus, Florida's approach - and the Supreme Court's failure to put a stop to it - will only end up hurting thousands of children, for no good reason at all.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University, currently visiting at the University of North Carolina School of Law. Her other columns on discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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