Analysis of Florida Adoption Case
By Arthur S. Leonard
Professor, New York Law School
57 Worth Street, New York NY 10013
212-431-2156
aleonard@nyls.edu
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.
[Home] [News] [Florida]
