Will Justices Hear Florida Adoption Ban Case?
January 5, 2005
By Ann Rostow
SUMMARY: The eyes of U.S. gay rights advocates will be
on the Supreme Court on Friday, when the justices will likely decide whether
to hear a challenge to Floridaís anti-gay adoption ban.
The U.S. Supreme Court will likely decide on Friday
whether to take review of Lofton v. Florida Department of Children and
Families, the ACLUís challenge to the Florida adoption ban.
Florida is the only state in the nation to bar gay and
lesbian individuals from even applying to become adoptive parents. It does so,
in part, based on the general view that homosexuality is immoral, which the
high court has previously said cannot be used as the sole justification for a
discriminatory law. Nonetheless, the Florida ban has been upheld by three
courts: a district court, a three-judge panel of the U.S. Court of Appeals for
the 11th Circuit, and finally by the entire 11th Circuit, which voted 6-6 not
to reconsider the case.
These last two decisions came despite the Supreme
Courtís June 2003 ruling in Lawrence
v. Texas, a decision that struck down the main pillar of anti-gay
jurisprudence, Bowers v. Hardwick.
Written by Justice Anthony Kennedy, Lawrence stood for the proposition that
gay couples have the same constitutional expectations of privacy and personal
autonomy as do other couples, and that laws that trample on these expectations
for no legitimate reason should not survive court examination.
After Lawrence was published, the ACLU wrote an
additional brief for the 11th Circuit panel, where Lofton had been recently
argued. When the panel eventually ruled for the state of Florida, many
observers were stunned, both by the decision and by the reasoning. The panel
ruled that the privacy rights articulated in Lawrence did not carry the same
weight as other fundamental rights and did not apply to a situation where the
state is selecting who will be eligible to raise its wards.
Earlier this week, a county judge in Arkansas used Lofton
to defend the proposition that the state of Arkansas may bar gay men and women
from becoming foster parents. The judge struck down Arkansasís
administrative ban on gay foster parents on other grounds.
In the year and a half since Lawrence was published. Half
a dozen major gay rights opinions have nimbly skipped over the points made in
Lawrence, or have eluded Lawrenceís dictates with deliberately narrow
interpretations. Lofton is arguably the most obvious of these rebellious
decisions, and it also divided the 11th Circuit down the middle, as half the
full court rejected the panelís reasoning and wanted another shot at the
The Supreme Court accepts only a tiny fraction of the
cases presented, and does so when at least four of the nine justices vote in
favor. Although itís impossible to guess where the justices will end up on
Lofton, itís tempting to think that the six-member group that voted in favor
of gay rights both in Romer v. Evans in 1996, and in Lawrence v. Texas in
2003, would want their views on sexual orientation law clarified before their
majority is dispersed.
The court usually announces the outcome of its Friday
deliberations on the following Monday.
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