Last edited: January 05, 2005

Will Justices Hear Florida Adoption Ban Case?

PlanetOut, 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 case.

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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