Last edited: February 01, 2004

Analysis of Florida Adoption Case

By Arthur S. Leonard
Professor, New York Law School
57 Worth Street, New York NY 10013

January 29, 2004

Yesterday’s decision by the 11th Circuit in the Lofton case is a tragedy on several fronts, not least in that it adopts the bizarre concept of “rationality” that says it makes sense to leave over 3,000 Florida orphans and other children who are wards of the state in limbo rather than let a gay person adopt any of them.

But its significance goes beyond that—this is one of the first major federal circuit decisions to construe the precedential scope of Lawrence v. Texas, and its approach to that task is extraordinarily disappointing. It basically says that the scope of Lawrence is best described by Justice Scalia’s dissenting comments about what the majority does not do: i.e., the majority does not specifically pronounce the sexual intimacy rights of gay people to be “fundamental rights” as that term is used in Due Process jurisprudence, and the majority strikes down the Texas sodomy law because it can find no rational basis for it. Thus, implicitly said Scalia, Lawrence was really a narrow rational basis holding that stands for little. (This, of course, ignores Scalia’s statement that the Lawrence majority has ruled out “morality” as a rational basis justification for the state to criminalize conduct of an intimate nature.) Taking Scalia as its textbook, the 11th Circuit panel says that any due process claim that might be found in this case would be adjudicated using the rationality test.

So—what passes for rationality? The court says that Florida legislators could rationally believe that the best setting for an adoption involves a heterosexually married couple, and because the “best interest of the child” is the primary policy consideration in adoption cases, Florida can reserve adopts for the “best setting.” The court treats as irrelevant the fact that thousands of children in Florida await adoption placements because of a lack of qualified adoptive parents, thus making the “best” (if you believe it is the best) the enemy of the good. Moreover, the court says it is rational for Florida legislators to believe this not because there is social science data supporting it, necessarily, but because there isn’t iron-clad scientific proof that gays make acceptable adoptive parents. And what do they cite to support this—a discredited study by Paul Cameron (remember him?), the New Hampshire Supreme Court’s old advisory opinion that gave the green light to that state’s legislators to adopt a ban on gays adopting kids—which the legislature has since repealed, and the dissent in Goodridge that argued that gays should not be allowed to marry because the jury is still out on whether kids raised by gay people turn out OK—which itself relies on discredited sources.

In other words—this decision probably violates the Supreme Court’s Daubert requirement that judges evaluate the credibility of “scientific sources” on which they rely.

At any rate, I hope the ACLU decides to take this further—to an en banc petition and even to the Supreme Court. I know that’s risky, but if we want to be able to use Lawrence (and Romer) effectively to attack anti-gay government policies, we have to do everything we can to keep adverse appellate precedents such as Lofton from becoming final, precedential decisions.

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