Last edited: January 05, 2005

Gay Adoption Case May Evoke Supreme Court’s ‘Lawrence’ Decision

Legal Times, January 5, 2005

By Tony Mauro

Gay rights returns to the Supreme Court’s agenda Friday, at the justices’ first private conference of the new year.

The Florida gay adoption case, Lofton v. Secretary of the Florida Department of Children and Families, is one of dozens of cases the Court will discuss at its conference with an eye toward granting or denying review.

If the justices do grant review, the case will give the Court its first chance to comment on the scope of its 2003 Lawrence v. Texas ruling that announced due process and privacy rights for homosexuals.

The 11th U.S. Circuit Court of Appeals narrowly applied Lawrence and an earlier ruling—Romer v. Evans—on Jan. 28, 2004, when it upheld Florida’s 1977 law excluding gay people from eligibility as adoptive parents.

The circuit panel’s decision “reflects an almost complete failure to absorb this Court’s rulings in Lawrence and Romer that disapproval of gay people is not a constitutionally acceptable basis for government action,” writes American Civil Liberties Union lawyer Matthew Coles in his petition to the Supreme Court. “It threatens to strip this Court’s holdings of any principled meaning and deprive them of the significance that they rightfully deserve.”

Florida is the only state that explicitly bars homosexuals from adopting children, although Mississippi prohibits couples of the same sex from adopting, and Arkansas prohibits homosexuals from being foster parents.

The Florida law was passed at the height of an anti-gay campaign led by singer and former Miss America runner-up Anita Bryant. The main sponsor in the legislature at the time said of gays, “We wish you’d go back into the closet.”

The law was challenged by several gay men who have been foster parents for years, but who are unable, because of the law, to adopt the children they have cared for.

Steven Lofton and Roger Croteau, his partner of 20 years, have raised 13-year-old “John Doe” since he was an infant. Even though they were given an award for their foster parenting, they were denied adoptive status because of the anti-gay-adoption law. Also challenging the law are Douglas Houghton Jr., a critical care nurse who was unable to adopt a boy he raised for nine of the boy’s 13 years, and Wayne LaRue Smith and Daniel Skahen, partners for 11 years who want to adopt a child placed in their custody by the state.

“The disqualification of eligible lesbian and gay applicants means [some Florida children] cannot be adopted by the persons best suited to become their parents,” Coles asserts in the brief.

Coles notes that Florida, while excluding gays as adoptive parents, does allow adoptions by individuals who are unmarried, disabled, or have a history of substance abuse or even domestic violence.

In its reply to the ACLU brief, the Florida family agency says Florida’s law is rationally related to valid state goals and that the 11th Circuit ruling is consistent with Lawrence because adoption, unlike a sexual relationship, is a public act and a privilege, not a right. And while not specifically barred by law, “people whose drug or child abuse threaten children are in practice never permitted to adopt in Florida,” the state asserts in a brief written by Casey Walker of the Vero Beach, Fla., firm Murphy & Walker.

The appeals panel ruled that the Florida law was constitutional and did not violate equal protection or due process principles.

While acknowledging that the decision in Lawrence established “a greater respect than previously existed in the law for the right of consenting adults to engage in private sexual conduct,” the panel said that right was not fundamental.

In a passage unusually critical of a high court decision, 11th Circuit Judge Stanley Birch Jr. added, “We are particularly hesitant to infer a new fundamental liberty interest from an opinion whose language and reasoning are inconsistent with standard fundamental-rights analysis.”

As a result, the 11th Circuit panel applied a relaxed “rational basis” standard when examining the Florida rule rather than the kind of “strict scrutiny” that would be used to weigh laws that interfere with fundamental rights.

Using the less-stringent standard, the appeals court accepted Florida’s rationale for the ban, namely that placing children in homes with married fathers and mothers provides ‘the stability that marriage affords and the presence of both male and female authority figures, which it considers critical to optimal childhood development and socialization.”

Birch said the state’s preference for homes with married mothers and fathers is based on “unprovable assumptions,” but those assumptions are a sufficient basis for legislation. “Any argument that the Florida legislature was misguided in its decision is one of legislative policy, not constitutional law.”

Joining Birch’s opinion was Judge Ed Carnes and 9th Circuit Judge Procter Hug Jr., sitting by designation. Last July, the 11th Circuit denied en banc review in the case by a 6-6 vote. In several other cases before the Supreme Court, the presence of recess appointee William Pryor Jr. on the 11th Circuit has been constitutionally challenged, so the appeals court’s mandate in Lofton has been stayed.

The Child Welfare League of America also filed a brief in the case, on the side of the gay would-be adoptive parents. Arguing that the Florida law bears no rational relationship to Florida’s adoption goals, the league says, “Florida’s ban is a radical departure from the nationwide consensus that adoption decisions should be made by professionals on a case-by-case basis and based on the best interests of the child.”

The brief, authored by Stuart Delery of Wilmer Cutler Pickering Hale and Dorr, also argues that leading pediatric, psychiatric, and child welfare organizations “oppose the categorical exclusion of gay men and lesbians as adoptive parents.”

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