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CASE BRIEF: Homosexuals and Adoption–equal protection
Lofton v. Secretary of the Dept. of Children & Family Services No. 01-16723 (11th Cir. 01/28/2004) (Casemaker cite–federal library)
Florida law prohibited adoption by any “homosexual” person. 1977 Fla. Laws, ch. 77-140, § 1, Fla. Stat. § 63.042(3) (2002). “Homosexual” meant applicants “known to engage in current, voluntary homosexual activity.” Florida law let unmarried people adopt, many of whom had adopted out of foster care.
Homosexual foster parents challenged the statute on equal protection grounds, arguing that homosexuals were similarly situated to unmarried persons regarding Florida’s interest in promoting married-couple adoption. [FN1] Neither party disputed that any fundamental right to adopt existed or that Florida’s preference for marital adoptive families was a legitimate state interest. No court has found homosexuals to be a suspect class. Thus the rational-basis test applied.
Unless the challenged classification burdens a fundamental right or targets a suspect class, the Equal Protection Clause requires only that the classification be rationally related to a legitimate state interest. Citing Romer v. Evans, 517 U.S. 620, 631 (1996).
“Could the Florida legislature have reasonably believed that prohibiting adoption into homosexual environments would further its interest in placing adoptive children in homes that will provide them with optimal developmental conditions.”
(2) “It is not irrational to think that heterosexual singles have a markedly greater probability of eventually establishing a married household and, thus, providing their adopted children with a stable, dual-gender parenting environment.”
(3) It was rational to believe that heterosexual singles are better positioned than homosexual individuals to educate and guide their adopted children regarding their sexual development. Because most adopted children will develop heterosexual preferences, those children will need education and guidance after puberty about relating to the opposite sex. It therefore serves the child’s best interests to have parents who can personally relate to the child’s problems and assist the child in transitioning to heterosexual adulthood. [FN 2]
(4) Because adopted children often have developmental problems arising from adoption, having a stable heterosexual household during and after puberty might be more important for adopted children than for other children.
(5) Whether the Florida legislature was misguided was a question of legislative policy, not constitutional law. “The legislature is the proper forum for this debate.”
FN 1: This brief omitted Loften’s due process challenge, which failed mainly because Loften could not establish threats to already existing “family integrity” or “private sexual intimacy.”
FN 2: Petition for Rehearing En Banc was denied in July 2004. Petition for certiorari to the U.S. Supreme Court was denied in January 2005.
The Florida statute violates equal protection. The court reasoned:
“It is not irrational to think that heterosexual singles have a markedly greater probability of eventually establishing a married household and, thus, providing their adopted children with a stable, dual-gender parenting environment.”
But single persons are either fit to adopt when they adopt, or they are not. The state cannot let single parents adopt without assuming they will stay fit if they stay single. Under that assumption, single parents do not further the state’s goal of providing a “stable, dual-gender parenting environment.”
The court next reasoned that it was rational to believe that heterosexual singles were better positioned than homosexual individuals to educate and guide their adopted children regarding their sexual development. Because most adopted children will develop heterosexual preferences, those children will need education and guidance about relating to the opposite sex. It therefore serves the child’s best interests to have parents who can personally relate to the child’s problems and assist the child in transitioning to heterosexual adulthood.
But that assumes that homosexual and heterosexual relationships differ fundamentally. The difference cannot be gender-based because the legislature assumes a heterosexual parent can counsel either a son or a daughter about heterosexual relationships. In turn, the legislature assumes that homosexuals cannot relate to heterosexual children regardless their sex. Thus, the legislature assumes some difference in the psychological make-up of homosexual relationships beyond mere sexual “orientation.”
But there is no evidence of it. The belief that a difference exists is therefore not rational, but prejudicial. The state must show some evidence of a fundamental difference between homosexuals and heterosexuals in their psychology–beyond the existence of the relationship itself–before it can assume that single homosexuals are less stable than single heterosexuals, or even that there is such a thing as a “homosexual environment.”
For those reasons, I believe the Florida statute violates equal protection.
Erik L. Smith