Lofton v. Sec. Dept. of Children and Family

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

_____________________________

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 01-16723 July 21, 2004

_____________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 99-10058-CV-JLK

STEVEN LOFTON,

DOUGLAS HOUGHTON,

TIMOTHY ACARO,

next friend of John Doe and John Roe,

WAYNE SMITH,

DANIEL SKAHEN,

JOHN DOE,

JOHN ROE,

minor children,

Plaintiffs-Appellants,

ANGELA GILMORE, et al.,

Plaintiffs,

versus

SECRETARY OF THE DEPARTMENT OF

CHILDREN AND FAMILY SERVICES,

(formerly H.R.S.), DISTRICT ADMINISTRATOR,

District XI of Florida Department of Children

and Family Services,

Defendants-Appellees.

CHARLIE CRIST,

Attorney General of the State of Florida,

Defendant,

ROBERT PAPPAS, District Administrator,

District X of Florida Department of Children

and Family Services,

Defendant-Appellee.

_______________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(July 21, 2004)

ON PETITION FOR REHEARING EN BANC

(Opinion Jan 28, 2004, ___________________)

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,

DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and

PRYOR, Circuit Judges.

BY THE COURT:

The Court having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedures;

Eleventh Circuit Rule 35-5), the Petition for Rehearing En Banc is DENIED.

/s/ J L EDMONDSON

Chief Judge

2

BIRCH, Circuit Judge, Specially Concurring in the Denial of Rehearing En Banc:

The dissents to the denial of rehearing en banc both agree that the Equal

Protection Clause challenge to the Florida statute at issue should have been

embraced by our court. After a review of the Supreme Court’s decisions in

Eisenstadt,1 Moreno,2 Cleburne,3 and Romer,4 the vociferous dissent by my sister

jurist (for whom I have great respect and affection), liberally quoting from Justice

O’Connor’s concurring opinion in Lawrence,5 concludes that under a rational

basis analysis or, alternatively, an animus-motivated analysis, the Florida adoption

statute at issue is constitutionally flawed. In addition to the discussion by the

unanimous panel in Lofton, 358 F.3d 804, 817-827, that reaches a contrary

conclusion, I would offer the following additional considerations to balance those

suggested by Judge Barkett’s spirited and well-crafted dissent.

The Lofton panel’s analysis and approach in this case was premised on a

fundamental principal or philosophy, articulated well by Justice Felix Frankfurter

1

Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1972).

2

U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 93 S. Ct. 2821 (1973).

3

City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 105 S. Ct. 3249 (1985).

4

Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620 (1996).

5

Lawrence v. Texas, __ U.S. __, 123 S. Ct. 2472 (2003).

3

in his concurring opinion in Dennis v. United States, 341 U.S. 494, 525, 71 S. Ct.

857, 875 (1951), when he observed:

Courts are not representative bodies. They are not designed to be a

good reflex of a democratic society. ... Their essential quality is

detachment, founded on independence. History teaches that the

independence of the judiciary is jeopardized when courts become

embroiled in the passions of the day and assume primary

responsibility in choosing between competing political, economic and

social pressures.

The dissent, instead of approaching the issue as the panel did in this case by

asking “[W]hether the Florida legislature could 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,” Lofton, 358 F.3d at 820, seeks to disparage a

fundamental rationale of the Florida legislature. Both the Florida attorney general

and a Florida appellate court, specifically considering an equal protection

challenge to the statute, articulated a rational and arguable basis for the statute:

“[W]hatever causes a person to become a homosexual, it is clear that the state

cannot know the sexual preferences that a child will exhibit as an adult.

Statistically, the state does know that a very high percentage of children available

for adoption will develop heterosexual preferences.” Fla. Dep't of Health &

4

Rehab. Servs. v. Cox, 627 So.2d 1210, 1229 (Fla. Dist. Ct. App. 1993). Stated

differently, the mainstream of contemporary American family life consists of

heterosexual individuals. Can it be seriously contended that an arguably rational

basis does not exist for placing adoptive children in the mainstream of American

family life? And that to do so is irrational? I think not. In fact, the Congress of

the United States in determining what is in the best interests of other special needs

children, the handicapped, has passed laws focused on educationally

mainstreaming such children. See, e.g., 20 U.S.C. § 1412(a)(5)(A) (“To the

maximum extent appropriate, children with disabilities, including children in

public or private institutions or other care facilities, are educated with children

who are not disabled”).

It is also worthy to note that the dissent would focus on conduct by

Florida’s executive branch (the Department of Children and Family Services [“the

Department”]) and Florida’s judicial branch (citing just two isolated custody

determinations), which the dissent argues is inconsistent with the legislature’s

arguably rational bases. Recall that the Supreme Court has held: “It could be that

the assumptions underlying these rationales are erroneous, but the very fact that

they are arguable is sufficient, on rational-basis review, to immunize the

legislative choice from constitutional challenge.” Heller v. Doe, 509 U.S. 312,

5

333, 113 S. Ct. 2637, 2649-50 (1993) (citation and internal punctuation marks

omitted) (emphasis mine). Moreover, post-legislation conduct, including the

passage of regulations, by the executive agency that must find placements for

parentless children, which may be at times inconsistent with the spirit, if not the

letter, of a legislative enactment, should not weigh heavily in the calculus of

rational basis review. The executive branch, acting through unelected bureaucrats

who, while undoubtedly concerned about the best interests of their wards, often

are motivated by other concerns such as coping with inadequate resources and an

unmanageable number of unplaced children. As the Lofton panel recognized:

The Equal Protection Clause of the Fourteenth Amendment

proclaims that “[n]o State shall ... deny to any person within its

jurisdiction the equal protection of laws.” U.S. Const. amend. XIV,

§ 1. The central mandate of the equal protection guarantee is that

“[t]he sovereign may not draw distinctions between individuals based

solely on differences that are irrelevant to a legitimate governmental

objective.” Lehr v. Roberston, 463 U.S. 248, 265, 103 S.Ct. 2985,

2995, 77 L.Ed.2d 614 (1983). Equal protection, however, does not

forbid legislative classifications. Nordlinger v. Hahn, 505 U.S. 1, 10,

112 S.Ct. 2326, 2331, 120 L.Ed.2d 1 (1992). “It simply keeps

governmental decisionmakers from treating differently persons who

are in all relevant respects alike.” Id. 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. Romer v. Evans, 517

U.S. 620, 631, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996). As we

have explained, Florida’s statute burdens no fundamental rights.

Moreover, all of our sister circuits that have considered the question

have declined to treat homosexuals as a suspect class.16 Because the

6

present case involves neither a fundamental right nor a suspect class,

we review the Florida statute under the rational-basis standard.

Rational-basis review, “a paradigm of judicial restraint,” does

not provide “a license for courts to judge the wisdom, fairness, or

logic of legislative choices.” F.C.C. v. Beach Communications, Inc.,

508 U.S. 307, 313-14, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993)

(citation omitted). The question is simply whether the challenged

legislation is rationally related to a legitimate state interest. Heller v.

Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257

(1993). Under this deferential standard, a legislative classification “is

accorded a strong presumption of validity,” id. at 319, 113 S.Ct. at

2642, and “must be upheld against equal protection challenge if there

is any reasonably conceivable state of facts that could provide a

rational basis for the classification,” id. at 320, 113 S.Ct. at 2642

(citation omitted). This holds true “even if the law seems unwise or

works to the disadvantage of a particular group, or if the rationale for

it seems tenuous.” Romer, 517 U.S. at 632, 116 S.Ct. at 1627.

Moreover, a state has “no obligation to produce evidence to sustain

the rationality of a statutory classification.” Heller, 509 U.S. at 320,

113 S.Ct. at 2643. Rather, “the burden is on the one attacking the

legislative arrangement to negative every conceivable basis which

might support it, whether or not the basis has a foundation in the

record.” Id. at 320-21, 113 S.Ct. at 2643 (citation omitted).

___________

Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128

16

F.3d 289 (6th Cir. 1997); Holmes v. Cal. Army Nat’l Guard, 124 F.3d

1126 (9th Cir. 1997); Richenberg v. Perry, 97 F.3d 256 (7th Cir.

1996); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996); Steffan v.

Perry, 41 F.3d 677 (D.C. Cir. 1994); High Tech Gays v. Defense

Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990); Ben-

Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Woodward v. United

States, 871 F.2d 1068 (Fed. Cir. 1989); Town of Ball v. Rapides

Parish Police Jury, 746 F.2d 1049 (5th Cir. 1984); Rich v. Sec’y of

the Army, 735 F.2d 1220 (10th Cir. 1984).

7

Lofton, 358 F.3d. at 817-18. Citing some inconsistent actions by Florida

bureaucrats in the Department and two isolated Florida judicial decisions hardly

meets the burden “to negative every conceivable basis which might support [the

legislative arrangement], whether or not the basis has a foundation in the record.”

Heller, 509 U.S. at 320-21, 113 S.Ct. at 2643.

The dissent also sets up a “straw man” when it suggests: “[t]he panel also

intimates in dicta that Florida has a legitimate interest in defending public morality

by expressing disapproval of homosexuality.” Dissent (Barkett, J.) At __. The

footnote was not motivated by some sort of homophobic agenda, but only

acknowledged the argument advanced by Florida’s counsel that public morality

was a rational basis and thus the panel stated, given our finding of a

mainstreaming rationale as a rational basis, that “it is unnecessary for us to resolve

the question [of a public morality basis].” Lofton, 358 F.3d at 819.

Turning now from the dissent’s attack on the rational basis predicate to its

alternative “animus/analysis” challenge, I offer the following perspectives in

counter-balance to the arguments by the dissent. The dissent advances a second

equal protection argument in favor of striking down the Florida adoption statute’s

categorical prohibition against practicing homosexual citizens. As I understand

the dissent’s argument, once it is demonstrated that the motivation propelling a

8

piece of legislation is animus, a different sort of analysis from a traditional “any-

existing-rational-basis-will-justify” approach must be employed, as putatively

mandated by Supreme Court precedents in Romer, Cleburne, Moreno and

Eisenstadt. Under this “animus/analysis,” a court is required to examine whether

the proffered reasons for the statute are pretextual—particularly in light of what

the State (including its executive branch [here the Department] and judicial branch

[courts awarding custody to homosexual parents, etc.]) does that is contradictory

to the statute.

While a principled argument can be made on this equal protection

animus/analysis that might result in invalidation of this statute, see Shahar v.

Bowers, 114 F.3d 1097, 1125 (1997) (en banc) (Birch, J., dissenting), the Lofton

panel was not willing to embrace that more adventurous leap and preferred to stay

with a more traditional analytical approach that ignored the actual legislative

history and instead searched for any rational basis.

The real point of disagreement between the Lofton panel and the dissent is

whether rational-basis review should always uphold a law as long as there exists

some “conceivable” rational basis—or whether there are certain instances that call

for a “more searching” form of rational-basis review that examines the actual

9

motivations underlying the law. Accordingly, I offer the counter-argument to the

dissent’s “heightened rational-basis review” theory.

The dissent’s interpretation of Romer, Cleburne, Moreno and

Eisenstadt—and its theory that these precedents call for a “more searching” form

of rational-basis review—is summarized well in the following passage:

In all four cases, the Court concluded that the asserted

justifications were not rationally related to the classification.

Thus, the Court inferred that animus was the motivation behind

the legislation and established that such a motivation could not

constitute a legitimate state interest.

Dissent (Barkett, J.) at ___.

Aside from Justice O’Connor’s Lawrence concurrence, I have found

in the Supreme Court’s language no explicit support for the theory that

rational-basis review should examine the actual motivation behind

legislation (assuming that such a thing can be divined with any accuracy). I

also note the Supreme Court’s own observation that “it is entirely irrelevant

for constitutional purposes whether the conceived reason for the challenged

distinction actually motivated the legislature.” F.C.C. v. Beach

Communications. Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 2102 (1993); see

also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S. Ct.

925, 929 (1986) (“It is a familiar principle of constitutional law that this

10

Court will not strike down an otherwise constitutional statute on the basis of

an alleged illicit legislative motive.”) (citation omitted).

Moreover, my review of the cases cited by the dissent fails to

convince me that those opinions applied a “heightened” form of review as

the dissent contends. In that vein, I offer my more conventional and

measured reading of each of those precedents.

The Romer Court found Colorado’s Amendment 2—a “sweeping and

comprehensive” measure that imposed a “broad and undifferentiated

disability” on the state’s homosexual residents—to be “inexplicable by

anything but animus” because the breadth of the Amendment so exceeded

its proffered rationales. 517 U.S. 620, 116 S. Ct. 1620 (1996). As I

understand it, the fatal defect in Amendment 2 was not that the Court

determined that actual animus motivated passage of the Amendment.

Indeed, in contrast to the dissent’s scrutiny of the legislative history of the

Florida statute, the Romer Court never examined the actual history of the

plebiscite vote that led to passage of Amendment 2, nor the accompanying

campaign rhetoric or the “intent” of the electorate.

Instead, the Court found the proffered rationales so implausible that

the Court inferred that animus was the only conceivable (as opposed to

11

actual) rationale. See id. at 632, 116 S. Ct. at 1627 (The Amendment’s

“sheer breadth is so discontinuous with the reasons offered for it that the

amendment seems inexplicable by anything but animus toward the class it

affects.”). In its pivotal language, the Court stated:

The primary rationale the State offers for Amendment 2 is respect for

other citizens' freedom of association, and in particular the liberties of

landlords or employers who have personal or religious objections to

homosexuality. Colorado also cites its interest in conserving resources

to fight discrimination against other groups. The breadth of the

amendment is so far removed from these particular justifications that

we find it impossible to credit them. We cannot say that Amendment

2 is directed to any identifiable legitimate purpose or discrete

objective. It is a status-based enactment divorced from any factual

context from which we could discern a relationship to legitimate state

interests; it is a classification of persons undertaken for its own sake,

something the Equal Protection Clause does not permit.

Id. at 635, 116 S.Ct. at 1629.

In sum, I read Romer to stand for the proposition that when all the

proffered rationales for a law are clearly and manifestly implausible, a

reviewing court may infer that animus is the only explicable basis. And

animus alone cannot constitute a legitimate government interest.

In City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 105

S. Ct. 3249 (1985), the Supreme Court invalidated, under the rational-basis

test, a municipal zoning ordinance requiring a group home for the mentally

12

retarded to obtain a special use permit. Id. at 435, 105 S. Ct. at 3252.

Although the municipality offered various justifications for the ordinance,

the Court could not discern how these justifications applied particularly to

mentally retarded residents—but not to other groups of persons who could

freely occupy the identical structure without a permit, such as boarding

houses, fraternity houses, and nursing homes. Id. at 449-50, 105 S. Ct. at

3259-60.

Cleburne stands primarily for the proposition that irrational prejudice

is not a legitimate state interest. And irrational prejudice can be inferred as

the basis for a classification when there is no reason to believe that the

disadvantaged class is different, in relevant respects, from similarly situated

classes.

I would also note this recent gloss that the Court gave Cleburne in

Bd. of Trustees of the Univ. of Alabama v. Garrett:

The [Cleburne] Court's reasoning was that the city's purported

justifications for the ordinance made no sense in light of how the city

treated other groups similarly situated in relevant respects. Although

the group home for the mentally retarded was required to obtain a

special use permit, apartment houses, other multiple-family

dwellings, retirement homes, nursing homes, sanitariums, hospitals,

boarding houses, fraternity and sorority houses, and dormitories were

not subject to the ordinance.

13

531 U.S. 356, 366 n.4, 121 S. Ct. 955, 963 n.4 (2001). Garrett also

expressly rejected the theory that, under Cleburne, the mere presence of

animus can fatally taint a statute against a rational-basis challenge:

Justice Breyer suggests that Cleburne stands for the broad proposition

that state decisionmaking reflecting "negative attitudes" or "fear"

necessarily runs afoul of the Fourteenth Amendment. Although such

biases may often accompany irrational (and therefore

unconstitutional) discrimination, their presence alone does not a

constitutional violation make. As we noted in Cleburne: “[M]ere

negative attitudes, or fear, unsubstantiated by factors which are

properly cognizable in a zoning proceeding, are not permissible bases

for treating a home for the mentally retarded differently ....”

Id. at 367, 121 S. Ct. at 964 (internal citations omitted) (emphasis added in

Garrett).6 In U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 93 S. Ct. 2821

(1973), the Court found that Section 3(a) the Federal Food Stamp Act, which

forbade assistance to any "household" wherein one member was unrelated to any

other member, was not rationally related to any legitimate state interest, including

the proffered reasons, such as fraud prevention. This led to the Court to conclude

that the only plausible rationale for the provision was to prevent hippie communes

from taking advantage of food stamp assistance. And this, by itself, was not a

6

With regard to the argument that actual motivation is relevant on rational basis review, Garrett

observes that “the State need not articulate its reasoning at the moment a particular decision is made.

Rather, the burden is upon the challenging party to negative any reasonably conceivable state of

facts that could provide a rational basis for the classification.” Id. at 367, 121 S. Ct. at 964 (internal

quotation marks omitted) (emphasis mine).

14

sufficient basis to sustain the provision: "a bare congressional desire to harm a

politically unpopular group cannot constitute a legitimate governmental interest . .

. without reference to some independent considerations in the public interest." Id.

at 534, 93 S. Ct. at 2826 (emphasis mine).

I call particular attention to a later gloss on Moreno expressly disclaiming

the theory that Moreno stands for something more than traditional rational-basis

review:

[In Moreno,] we upheld an equal protection challenge to a provision

of the Food Stamp Act and concluded that 'a bare congressional

desire to harm a politically unpopular group cannot constitute a

legitimate governmental interest.' This statement is merely an

application of the usual rational-basis test: if a statute is not

rationally related to any legitimate governmental objective, it cannot

be saved from constitutional challenge by a defense that relates it to

an illegitimate governmental interest. Accordingly, in Moreno itself

we examined the challenged provision under the rational-basis

standard of review.

Lyng v. United Auto. Workers of America, 485 U.S. 360, 370 n.8, 108 S. Ct. 1184,

1192 n.8 (1988) (emphasis mine).

In Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029 (1972), the issue was

whether a Massachusetts law that prevented dispensation of contraceptives to

unmarried persons unless the purpose was to prevent disease violated the Equal

Protection clause by treating married and unmarried persons differently. In

15

Eisenstadt, as in Romer, the fatal defect was not a determination that actual

animus motivated the law, but that the proffered rationales were implausible. See

id. at 449, 92 S. Ct. at 1036 (“Even on the assumption that the fear of pregnancy

operates as a deterrent to fornication, the Massachusetts statute is thus so riddled

with exceptions that deterrence of premarital sex cannot reasonably be regarded as

its aim.”). As I understand it, the Eisenstadt Court was not, as the dissent

suggests, looking at the actual motivations behind the statute. Instead, the Court

simply found that the proffered reasons did not rationally relate to the scope of the

legislation and, accordingly, the classification failed rational-basis review.

The Lofton panel concluded its analysis with the following observation:

“Florida has made the determination that it is not in the best interests of its

displaced children to be adopted by [homosexuals] . . . and we have found nothing

in the Constitution that forbids this policy judgment. Thus, any argument that the

Florida legislature was misguided in its decision is one of legislative policy, not

constitutional law. The legislature is the proper forum for this debate, and we do

not sit as a superlegislature ‘to award by judicial decree what was not achievable

by political consensus.’” Lofton, 358 F.3d at 827 (citation omitted). The dissent

would have this court impose its putatively superior judgment on this policy issue

and legislate from the bench. Such a breach of the separation of powers and

16

departure from deference to the elected lawmakers of Florida, we have rejected.

Only where the laws of Florida can be demonstrated to be irrational on any

arguable basis or constitute a clear deprivation of a citizen’s fundamental rights

should this court substitute its judgment for that of the Florida legislature. Thus, I

turn to the alternative analysis by one of the dissents that finds such a fundamental

right having been articulated in the Supreme Court’s decision in Lawrence.

The right to privacy that is the touchstone for a right to sexual intimacy by

consenting adults (hereinafter “RSI/CA”) has its Supreme Court lineage and

trajectory through the decisions in Griswold (1965),7 Eisenstadt (1972),8 Roe v.

Wade (1973),9 and Carey (1977),10 and culminating with Lawrence (2003) (which

leveled the only speed-bump in that trajectory, Bowers v. Hardwick (1986)11).

There seems to be only one problem with this theory, albeit in the form of a

footnote:

[T]he Court has not definitely answered the difficult question whether

and to what extent the Constitution prohibits state statutes regulating

7

Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, (1965).

8

Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1972).

9

410 U.S. 113, 93 S. Ct. 705 (1973).

10

Carey v. Population Srvs. Int’l, 431 U.S. 678, 97 S. Ct. 2010 (1977).

11

478 U.S. 186, 106 S. Ct. 2841 (1986).

17

private consensual sexual behavior among adults, and we do not

purport to answer that question now.

Carey, 431 U.S. at 688 n.5, 97 S.Ct. at 2018 n.5 (internal punctuation and citation

omitted). I suggest that the answer to Carey’s “difficult question” was not

provided to us in Lawrence when viewed through an objective lens. I find that the

most coherent lens through which to read Lawrence and its often enigmatic

language is to recall that most of that language is devoted to explaining why the

Court was not bound by its prior decision in Bowers. Perhaps the best way to

explain this reading is to begin with the dissent’s chief critique of the Lofton

panel’s interpretation of Lawrence. The dissent posits that the Lofton panel failed

to recognize that Lawrence unequivocally held that consenting adults have a

substantive due process right to engage in private intimate sexual conduct. This

statement highlights well where the dissent and the Lofton panel part company.

The first task in faithfully applying precedent, including that of the Supreme

Court, is to look to the actual holding of the relevant precedent. That task requires

examining the facts that were before the deciding court and ascertaining what

conclusions of law were necessarily reached in disposing of the case.

18

A word-count approach as apparently employed by the dissent, in addition

to being too formalistic, is problematic in practice. For example, my own

unscientific survey of the words, phrases, sentences, and paragraphs used in

Lawrence reveals not only language from which can be inferred a RSI/CA, but

even stronger language from which we might infer any number of new rights, or

even a new mandate in conducting constitutional review. See, e.g., 123 S.Ct. at

2475 (“The instant case involves liberty of the person both in its spatial and more

transcendent dimensions.”); id. at 2481 (“At the heart of liberty is the right to

define one’s own concept of existence, of meaning, of the universe, and of the

mystery of human life. Beliefs about these matters could not define the attributes

of personhood were they formed under compulsion of the State.”) (quoting

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851, 112 S. Ct.

2791, 2807 (1992)); id. at 2483 (“[T]imes can blind us to certain truths and later

generations can see that laws once thought necessary and proper in fact serve only

to oppress. As the Constitution endures, persons in every generation can invoke

its principles in their own search for greater freedom.”).

I realize these are outer examples, but they point to the importance of

attentiveness to context in interpreting precedent—and in distinguishing binding

language from advisory dicta. It was this distinction that the Lofton panel

19

carefully made in construing Lawrence and its holding: “Lawrence’s holding was

that substantive due process does not permit a state to impose a criminal

prohibition on private consensual homosexual conduct.” Lofton, 358 F.3d at 815.

I would add that this holding relied on two predicate legal conclusions: (1) that

stare decisis did not require that Bowers’s precedent be followed and (2) that

Texas’s sodomy prohibition did not further a legitimate state interest. It was

necessary for the Court to reach the first conclusion because Bowers had upheld

Georgia’s sodomy statute against, inter alia, a rational-basis challenge. And the

second conclusion was all that was required to resolve the dispositive question of

whether the Texas sodomy law was constitutional.

To read Lawrence’s holding any broader would be to assume that the Court

departed from the established principle of minimalism in deciding constitutional

matters. Of course, the Court will so depart from time to time, usually when

announcing a new rule of constitutional law that will require frequent application

by the lower courts (precedents like Miranda v. Arizona,12 Strickland v.

Washington,13 and BMW v. Gore14 come to mind). And those decisions are

12

384 U.S. 436, 86 S. Ct. 1602 (1966).

13

466 U.S. 668, 104 S. Ct. 2052 (1984).

14

BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589 (1995).

20

typically accompanied with clear guideposts for applying the new rule. Lawrence

does not appear to be such a case. We find in the opinion no such guideposts;

there is no description of the scope of this putative fundamental right, no standard

of review for scrutinizing infringements on that right, no balancing test, and so on.

What we do find in the Lawrence opinion by way of mandate is that Bowers

is no longer to be treated as good law. Indeed, Bowers is its constant point of

reference, and the unrelenting thrust of Lawrence’s analysis is to show that

Bowers should not have reached the result it did. This begins in the first

paragraph of the majority opinion’s analysis, where the Court announced, “[W]e

deem it necessary to reconsider the Court’s holding in Bowers.” 123 S. Ct. at

2476. Virtually the entire remainder of the opinion is focused upon explaining

Bowers’s shortcomings, culminating in the pronouncement that “Bowers was not

correct when it was decided, and it is not correct today. It ought not to remain

binding precedent. Bowers v. Hardwick should be and now is overruled.” Id. at

2484. Having cleared Bowers from the books, the Court’s analysis spends a mere

two paragraphs on the facts of the Lawrence case—and disposes of the case in a

single sentence: “The Texas statute furthers no legitimate state interest which can

justify its intrusion into the personal and private life of the individual.” Id.

21

An important point bears noting here. To say that Lawrence overruled

Bowers is not to say that every question Bowers answered in the negative should

now be answered in the affirmative (or vice versa).15 For example, although the

Lawrence Court specifically noted that Bowers misframed the issue as one of

whether there is a right to engage in sodomy, the Court never identified how

Bowers should in fact have framed the inquiry—much less what the precise

answer to that inquiry should have been. Id. at 2478. We see this pattern

throughout the Lawrence opinion. The opinion contains extensive critique of

Bowers’s answers to the questions raised in that case—but virtually no definitive

answers to those questions, much less rules of law. Another example is

Lawrence’s history discussion. After noting Bowers’s misframing of its inquiry,

the Court went on to point out some of the “fundamental criticisms of the

historical premises relied upon by the majority and concurring opinions in

Bowers.” Id. (“Having misapprehended the claim of liberty there presented to it,

and thus stating the claim to be whether there is a fundamental right to engage in

consensual sodomy, the Bowers Court said: ‘Proscriptions against that conduct

15

For an even narrower interpretation of the extent to which Bowers was overruled, see Justice

Scalia’s dissent. Because the resolution of the instant case only required reaching the rational basis

of the challenged statute, it was Justice Scalia’s suggestion that Lawrence only overruled the

rational-basis aspect of Bowers’s holding, but left intact its fundamental-rights holding. 123 S. Ct.

at 2488 (Scalia, J., concurring).

22

have ancient roots.’”). Here, again, the Court only pointed to shortcomings in

Bowers’s analysis, but did not reach any conclusions itself, noting that “[w]e need

not enter this debate in the attempt to reach a definitive historical judgment, but

the following considerations counsel against adopting the definitive conclusions

upon which Bowers placed such reliance.” Id.; see also id. at 2480 (“In summary,

the historical grounds relied upon in Bowers are more complex than the majority

opinion and the concurring opinion by Chief Justice Burger indicate. Their

historical premises are not without doubt and, at the very least, are overstated.”).

In short, the critique of Bowers provides the necessary context for

understanding the great bulk of Lawrence’s language—including much of the

language that the dissent quotes in support of its RSI/CA argument. For example,

the dissent’s main premise—that Lawrence “held that consenting adults have a

right under the Due Process Clause to engage in private sexual conduct, including

homosexual conduct,” Dissent (Barkett, J.) at ___, relies heavily on the Court’s

analysis of the privacy cases preceding Bowers, namely, Griswold, Eisenstadt,

Roe, and Carey.

Far from engaging in an extensive analysis, the Court spent less than a page

surveying these precedents. 123 S. Ct. at 2476-77. More importantly, rather than

put any definitive gloss on these precedents, the Court canvassed them in order to

23

point out that “[t]his was the state of the law with respect to some of the most

relevant cases when the Court considered Bowers v Hardwick.” Id. at 2477.

And so I return to my opening suggestion that the most coherent and

objective lens through which to read Lawrence is to recall that the purpose of the

vast bulk of its analysis was to call into question and ultimately overrule Bowers.

Of course, this still leaves open the thorny question of to what extent the Griswold

line of cases—which no longer must be reconciled with Bowers—establish a

RSI/CA, as well as what standard of review that right would trigger. The question

is further complicated by Carey’s footnote 5, which not only disavowed that those

precedents had definitely established such a right, but also rejected the argument

that strict scrutiny was the appropriate standard. See 431 U.S. at 688 n.5, 97 S.Ct.

at 2018 n.5.

The dissent would have our court create a new fundamental substantive due

process right where none has existed before. The Lofton panel and this court’s

rejection of en banc review has declined such an activist approach and has sought

to “exercise the utmost care whenever . . . asked to break new ground” in the field

of fundamental rights. Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct.

2258, 2268 (1997). I submit that the latter is the best advised course—particularly

in this area where the Court appears to be breaking new ground, but has crafted its

24

opinions to avoid fashioning bright-line rules and to limit its holdings to the facts

of the immediate case.16 In my view, the most judicious way to follow such

precedents is to apply their holdings to cases involving the same facts and permit

the Supreme Court itself to clarify the gray areas it has apparently (and perhaps

intentionally) left for another day. It may well be that the Court in time takes its

jurisprudence in the direction that the dissent advocates. But that, in my opinion,

is a step for the Supreme Court to take.

The Lofton panel chose not to expand Lawrence through inference and

extrapolation, but rather applied the holding of Lawrence to the facts at hand. Our

reading finds its legitimacy in the following passage from Lawrence, a passage in

which the Court clearly limited the scope of its holding:

The present case does not involve minors. It does not involve persons

who might be injured or coerced or who are situated in relationships

where consent might not easily be refused. It does not involve public

conduct or prostitution. It does not involve whether the government

must give formal recognition to any relationship that homosexual

persons seek to enter. The case does involve two adults who, with

full and mutual consent from each other, engaged in sexual practices

common to a homosexual lifestyle. The petitioners are entitled to

respect for their private lives. The State cannot demean their

16

Cf. Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 1998 WL 101701

(6th Cir. Feb. 5, 1998) (Boggs, J., concurring in denial of rehearing en banc) (“Even the staunchest

proponents of the Supreme Court*s decision in Romer v. Evans readily admit that the Court in that

case purposely crafted a narrow opinion focused on the precise factual situation presented by

Colorado*s Amendment 2.”) (citation omitted).

25

existence or control their destiny by making their private sexual

conduct a crime. Their right to liberty under the Due Process Clause

gives them the full right to engage in their conduct without

intervention of the government. “It is a promise of the Constitution

that there is a realm of personal liberty which the government may not

enter.” Casey, supra, at 847, 112 S. Ct 2791. The Texas statute

furthers no legitimate state interest which can justify its intrusion into

the personal and private life of the individual.

123 S. Ct. at 2484.

As the Lofton panel explains, this case is different from Lawrence because

this is not a criminal prosecution, because the state is not attempting to intervene

in the private lives of any adults, because adoption is not a private act but a public

one, and because, when it permits people to adopt, the state confers official status

on them as adoptive parents. 358 F.3d at 817 ("the asserted liberty interest is not

the negative right to engage in private conduct without facing criminal sanctions,

but the affirmative right to receive official and public recognition"). This case is

different from Lawrence, the Lofton panel opinion points out, because Florida’s

statute does further a legitimate state interest. It furthers the legitimate interest the

state has in encouraging what it deems to be the optimal family structure, a home

that has both a mother and a father, id. at 819-20, or at least one parent in the

heterosexual mainstream of American family life. The plaintiffs did not seriously

contest the legal sufficiency of that state interest, but instead argued that the

26

Florida law is not rationally related to that interest, an argument that the panel

opinion thoroughly addresses. Id. at 820-26.

The dissent places great emphasis on the fact that the Court announced at

the beginning of its opinion that “the case should be resolved by determining

whether the petitioners were free as adults to engage in [their] private conduct in

the exercise of their liberty under the Due Process Clause of the Fourteenth

Amendment to the Constitution.” Lawrence, 123 S.Ct. at 2476. According to it,

this language, along with the Court’s other references to due process “liberty,”

requires that we interpret Lawrence as affirming a fundamental or substantive due

process right to private consensual adult intimacy. It contends that this, in turn,

requires that we subject the challenged Florida statute to “heightened scrutiny.”17

Then the dissent makes two related assumptions. First, it conflates

substantive due process analysis and fundamental rights analysis—or at least treats

the two as interchangeable. Second, it assumes that Lawrence’s references to

“liberty under the Due Process Clause” are tantamount to acknowledgment of a

constitutional right deserving strict scrutiny protection. Upon close scrutiny,

neither assumption is sound.

17

The dissent repeatedly refers to this “heightened scrutiny,” but never expressly specifies what

standard of review it would entail. However, it appears to be strict scrutiny. See Dissent (Barkett,

J.) at ___ (“a compelling and narrowly tailored justification”).

27

Admittedly, there is considerable overlap between substantive due process

analysis and fundamental rights analysis. And the Supreme Court has at times

used the term “substantive due process” as shorthand for its fundamental rights

analysis. But a careful reading of the Court’s precedents indicates that its

fundamental rights jurisprudence is but one subset of the various doctrines that

emanate from the concept of substantive due process.

As our Chief Judge has noted, “In its application, substantive due process is

a puzzling concept.” McKinney v. Pate, 20 F.3d 1550, 1567 (11th Cir. 1994)

(Edmondson, J., concurring). And even if I had the chutzpah to try, this would

hardly be the place to solve that puzzle. I will, however, sketch a few principles

that underlie my belief that there is no contradiction between the notion that

Lawrence employed substantive due process analysis and the Lofton panel’s

conclusion that Lawrence’s holding was a rational-basis holding.

As an initial matter, I would suggest that rational-basis review—like every

standard of review that scrutinizes the substance of state action for irrationality

and arbitrariness—is itself a form of substantive due process review. Although it

is rarely classified as such, I find no other plausible constitutional source for its

substantive review of state and federal legislative acts. Indeed, “the touchstone of

due process is protection of the individual against arbitrary action of

28

government.’” County of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S. Ct.

1708, 1716 (1998). And it has long been understood that the concept of due

process protects against not only procedural arbitrariness, but also substantive

arbitrariness.18 See Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665

(1986) (“And by barring certain government actions regardless of the fairness of

the procedures used to implement them, [the due process guarantee] serves to

prevent governmental power from being used for purposes of oppression.”).

As I understand it, this substantive scrutiny of governmental action is the

primary source of the Court’s jurisprudence regarding fundamental, or

unenumerated, rights (hereinafter, simply “fundamental rights”). However, the

concept of substantive due process underlies other doctrines outside the field of

fundamental rights. For example, I note that just last term the Court reaffirmed its

line of cases holding that there are “substantive constitutional limitations” on the

18

In Lewis, the Court stated:

We have emphasized time and again that the touchstone of due process is protection

of the individual against arbitrary action of government, whether the fault lies in a

denial of fundamental procedural fairness or in the exercise of power without any

reasonable justification in the service of a legitimate governmental objective, see,

e.g., Daniels v. Williams, 474 U.S. at 331 (the substantive due process guarantee

protects against government power arbitrarily and oppressively exercised). While

due process protection in the substantive sense limits what the government may do

in both its legislative and its executive capacities, criteria to identify what is fatally

arbitrary differ depending on whether it is legislation or a specific act of a

governmental officer that is at issue.

523 U.S. at 845, 118 S. Ct. at 1716 (internal citations omitted) (emphasis mine).

29

size and severity of civil punitive damage awards. State Farm Mutual Auto. Ins.

Co. v. Campbell, 538 U.S. 408, 416, 123 S. Ct. 1513, 1519 (2003).19 Another

example is the “shocks the conscience” test, under which courts consider whether

the substance of actions by governmental officers is fatally arbitrary.20

I note these examples to underscore my point that rational-basis review

likewise is a form of substantive review, albeit a deferential one, that protects

against the arbitrary and irrational exercise of legislative power in enacting

economic and social legislation. See, e.g., Washington v. Glucksberg, 521 U.S.

702, 766, 117 S. Ct. 2258, 2282 (1997) (Souter, J., concurring) (canvassing the

19

See also State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S. Ct. 1513,

1519-20 (2003) (“The Due Process Clause of the Fourteenth Amendment prohibits the imposition

of grossly excessive or arbitrary punishments on a tortfeasor.”); id. at 417, 123 S.Ct. at 1520

(“Despite the broad discretion that States possess with respect to the imposition of criminal penalties

and punitive damages, the Due Process Clause of the Fourteenth Amendment to the Federal

Constitution imposes substantive limits on that discretion”) (internal quotation marks omitted)

(emphasis mine).

20

See, e.g., Lewis, 523 U.S. at 846, 118 S. Ct. at 1716 (“[I]n Collins v. Harker Heights, we said

again that the substantive component of the Due Process Clause is violated by executive action only

when it can properly be characterized as arbitrary, or conscience shocking, in a constitutional

sense.”) (internal citation and quotation marks omitted); id. at 850, 118 S. Ct. at 1718-19 (“[O]ur

concern with preserving the constitutional proportions of substantive due process demands an exact

analysis of circumstances before any abuse of power is condemned as conscience-shocking.”);

Collins v. Harker Heights, 503 U.S. 115, 128, 112 S. Ct. 1061, 1070 (1992) (reasoning that city's

failure to properly warn its employees about known risks of harm was not “conscience shocking, in

a constitutional sense”); United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 2101 (1987)

(“So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks

the conscience.'”); Rochin v. California, 342 U.S. 165, 169, 72 S. Ct. 205, 208 (1952) (“Due process

of law is a summarized constitutional guarantee of respect for those personal immunities which . .

. are so rooted in the traditions and conscience of our people as to be ranked as fundamental, . . . or

are implicit in the concept of ordered liberty.”) (internal citations and quotation marks omitted).

30

history of substantive due process and describing rational-basis review as one

method, along with fundamental rights analysis, and scrutinizing state action for

arbitrariness).21 Accordingly, unlike the dissent, I do not find any incompatibility

between (a) the Lawrence Court’s assertion that “the case should be resolved by

determining whether the petitioners were free as adults to engage in [their] private

conduct in the exercise of their liberty under the Due Process Clause of the

Fourteenth Amendment to the Constitution” and (b) the Lofton panel’s conclusion

that the Court ultimately based its holding on rational-basis grounds.

With regard to the dissent’s second implicit assumption, I would submit that

the mere fact that a liberty interest receives substantive protection under the Due

Process Clause does not automatically trigger strict scrutiny. Based on its

interpretation that Lawrence recognizes a substantive liberty interest, the dissent

contends that any burden to that liberty interest requires strict scrutiny. Its chief

exhibits are various lines from Lawrence that allude to the petitioners’ liberty

21

The Supreme Court’s language in Concrete Pipe & Prods. v. Construction Laborers Pension

Trust, 508 U.S. 602, 113 S. Ct. 2264 (1993), illustrates well this overlap between substantive due

process and rational-basis review. The Concrete Pipe Court upheld an ERISA provision against,

inter alia, what the Court described as a “substantive due process” challenge. Although

characterizing its analysis as substantive due process analysis, the Court applied classic rational-basis

review in upholding the provision. Noting “the deferential standard of review applied in substantive

due process challenges to economic legislation,” id. at 639, 113 S. Ct. at 2288, the Court concluded

that the challenged statute was “rationally related to the terms of Concrete Pipe's participation in the

Plan it joined and that suffices for substantive due process scrutiny of this economic legislation,” id.

at 641, 113 S. Ct. at 2289 (emphasis mine).

31

under the Due Process clause. See, e.g., Lawrence, 123 S. Ct. at 2476 (“We

conclude the case should be resolved by determining whether the petitioners were

free as adults to engage in the private conduct in the exercise of their liberty under

the Due Process Clause of the Fourteenth Amendment to the Constitution.”); id. at

2478 (“The liberty protected by the Constitution allows homosexual persons the

right to make this choice.”); id. at 2484 (“Their right to liberty under the Due

Process Clause gives them the full right to engage in their conduct without

intervention of the government.”).

The dissent translates these general references to “liberty” under the Due

Process Clause into a specific due process right to engage in private sexual

conduct. The dissent appears to be: (multiple references to Due Process liberty) +

(decision finding Texas sodomy statute unconstitutional) = (holding that there is a

substantive due process right to sexual intimacy). But even if I were persuaded

that Lawrence announced, or “reaffirmed,” a substantive due process right to

sexual intimacy, I still am not convinced that burdens on this right necessarily

would require strict scrutiny. First, as the Lofton panel observed, the Lawrence

Court itself never applied, nor used any of the language of, strict scrutiny. Lofton,

358 F.3d at 817. Second, with all due respect, as cryptic as some of the Supreme

Court’s substantive due process precedents are, my recent review of them

32

convinces me of this much: the mere presence of a substantive liberty interest does

not automatically trigger strict scrutiny, as the dissent seems to suggest.

Indeed, even cursory research has revealed several instances in which the

Court identified a substantive right under the Fourteenth Amendment—and yet did

not require strict scrutiny. I note briefly two examples. The most recent is Sell v.

United States, 539 U.S. 166, 123 S. Ct. 2174 (2003), issued only days before the

Lawrence opinion. The Sell Court vacated the conviction of a murder defendant

who had been administered antipsychotic medication against his wishes in order to

render him competent to stand trial. What I find significant is that the Court

identified a “constitutionally protected liberty interest in avoiding the unwanted

administration of antipsychotic drugs,” id. at 178, 123 S. Ct at 2183 (internal

quotation marks omitted) (emphasis mine), and then proceeded to articulate a

standard of review lower than strict scrutiny—“necessary significantly to further

important governmental trial-related interests,” id. at 179, 123 S. Ct. at 2185.

The second case I note is City of Chicago v. Morales, 527 U.S. 41, 119 S.

Ct. 1849 (1999). There, the plurality opinion recognized, in language similar to

that employed in Lawrence, that “the freedom to loiter for innocent purposes is

part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth

Amendment.” Id. at 53, 119 S. Ct. at 1857. See also id. at 54, 119 S. Ct. at 1858

33

(“[A]n individual’s decision to remain in a public place of his choice is as much a

part of his liberty as the freedom of movement inside frontiers that is ‘a part of our

heritage.’”). I call attention to the fact that, despite using this substantive due

process language, the Morales plurality never hinted at the applicability of strict

scrutiny (and instead struck down Chicago’s gang loitering statute on vagueness

grounds—a decision that nevertheless was predicated on the existence of this

“constitutionally protected liberty” to loiter innocently, id. at 55, 119 S. Ct. at

1858).22

In sum, a closer and careful reading of Lawrence and other relevant

precedents indicate that, even if Lawrence’s dicta did acknowledge a

22

Also, in a somewhat older case, Youngberg v. Romeo, the Court examined “for the first time

the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth

Amendment.” 457 U.S. 307, 314, 102 S. Ct. 2452, 2457 (1982). The Court concluded that the

respondent, an institutionalized mental incompetent, “enjoy[ed] constitutionally protected interests

in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and

such training as may be required by these interests.” Id. at 324, 2462 S. Ct. at 2462. Throughout its

opinion, the Court referred to the respondent’s substantive liberty interests—yet never treated this

liberty as meriting strict scrutiny. See, e.g., id. at 315, 102 S. Ct. at 2458 (“the right to personal

security constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause”);

id. (“liberty from bodily restraint always has been recognized as the core of the liberty protected by

the Due Process Clause from arbitrary governmental action”) (internal punctuation omitted); id. at

318, 102 S. Ct. at 2459 (“we have recognized that there is a constitutionally protected liberty interest

in safety and freedom from restraint”). Having “established that [the respondent] retain[ed] liberty

interests in safety and freedom from bodily restraint,” the Court turned to the question of the proper

standard for determining whether his “substantive right protected by the Due Process Clause ha[d]

been violated.” Id. at 319, 102 S. Ct. at 2460. The Court ultimately employed a standard of review

considerably lower than strict scrutiny (whether the State exercised professional judgment in

protecting the rights of its involuntarily committed mentally retarded citizens). Id. at 321, 102 S. Ct.

at 2461.

34

constitutional liberty interest in private sexual intimacy, this liberty interest does

not rise to the level of a fundamental right nor does it necessarily trigger strict

scrutiny.

I will conclude on a purely personal note. If I were a legislator, rather than

a judge, I would vote in favor of considering otherwise eligible homosexuals for

adoptive parenthood. In reviewing the record in this case one can only be

impressed by the courage, tenacity and devotion of Messrs. Lofton and Houghton

for the children placed in their care. For these children, these men are the only

parents they have ever known. Thus, I consider the policy decision of the Florida

legislature to be misguided and trust that over time attitudes will change and it will

see the best interest of these children in a different light. Nevertheless, as

compelling as this perspective is to me, I will not allow my personal views to

conflict with my judicial duty—conduct that apparently fewer and fewer citizens,

commentators and Senators seem to understand or appreciate. And, I hasten to

add, the vast majority of federal judges, including each and every judge of the

Eleventh Circuit, are similarly sensitive to separate their personal preferences from

their duty to follow precedent as they understand it.

35

ANDERSON, Circuit Judge, Dissenting from the Denial of Rehearing En Banc in

which DUBINA, Circuit Judge, joins:

I agree with Judge Barkett that the cases she discusses in Section I of her

comprehensive dissent indicate that the challenged provision of the Florida statute

violates the Equal Protection Clause. For this reason, and because the issue is of

exceptional importance, Fed.R.App.P. 35(a)(2), en banc rehearing should be

granted.

36

BARKETT, Circuit Judge, Dissenting from the Denial of Rehearing En Banc:

Lofton v. Sec. of Dep’t of Children & Family Services, 358 F.3d 804 (11th

Cir. 2004), finds constitutional 1977 Fla. Laws, ch. 77-140, § 1, Fla. Stat. §

63.042(3) (2003), which provides that “[n]o person eligible to adopt under this

statute may adopt if that person is a homosexual.”1 Florida is the only state in the

union to have such a categorical statutory prohibition targeted solely against

homosexuals.2 This provision finds, as a matter of law, hundreds of thousands of

Florida citizens unfit to serve as adoptive parents solely because of

constitutionally protected conduct. There is no comparable bar in Florida’s

adoption statute that applies to any other group. Neither child molesters, drug

addicts, nor domestic abusers are categorically barred by the statute from serving

as adoptive parents. In a very real sense, Florida’s adoption statute treats

homosexuals less favorably than even those individuals with characteristics that

may pose a threat to the well-being of children.

1

For purposes of this statute, the term “homosexual” is “limited to applicants who are known to

engage in current, voluntary homosexual activity.” Fla. Dep’t of Health & Rehab. Servs. v. Cox, 627

So. 2d 1210, 1215 (Fla. Dist. Ct. App. 1993), aff’d in relevant part, 656 So. 2d 902, 903 (Fla. 1995).

2

Since 2000, Mississippi has statutorily prohibited “adoption by couples of the same gender.”

Miss. Code Ann. § 93-17-3(2) (2000). In 1999, Arkansas adopted a regulation, not a statute, barring

homosexuals from becoming foster parents, not adoptive parents. Ark. Reg. 200.3.2 (1999).

37

While Florida claims that it has singled out homosexuals because it wishes

to limit adoptions to married couples, the statute in this case says absolutely

nothing about married couples. In fact, Florida’s adoption statute expressly

provides for single persons to adopt. A full twenty-five percent of adoptions out

of foster care in Florida are by single people; in the district covering Miami-Dade

County, this figure is over forty percent.3 This is only the first and most glaring of

numerous gaps between the state’s ban on homosexual adoption and its purported

justification. Under Florida law, for example, single persons who are

homosexuals but are “not practicing” may adopt.4 Florida also permits

homosexuals (whether sexually active or not) to serve as foster parents on a

permanent basis,5 and the state acknowledges that such foster care placements

involve a state of “de facto permanency.”6 Finally, Florida permits homosexuals

to serve as legal guardians.7

The ban on homosexual adoption at issue here violates the Equal Protection

Clause of the Fourteenth Amendment because Florida’s proffered rational basis is

3

R. at 124 (Stipulation at ¶¶ 24-25).

4

See note 1 above.

5

See 2000 Fla. Laws, ch. 2000-139, § 30, Fla. Stat. § 39.623 (2003).

6

R. at 24 (Defs.’ Mot. to Dismiss at 10).

7

R. at 124 (Stipulation at ¶¶ 9-11).

38

expressly refuted by the state’s own law and practice and because a class

consisting of all homosexual citizens was targeted solely on the basis of

impermissible animus. Thus, as argued in Section I below, even under the lowest

standard of review – rational basis – Florida’s statute fails to survive equal

protection analysis under the Supreme Court’s precedents in Eisenstadt,8 Moreno,9

Cleburne,10 and Romer.11

The state’s ban on homosexual adoption also violates the Due Process

Clause by conditioning access to the statutory privilege of adoption on surrender

of the right to engage in private intimate sexual conduct protected by Lawrence v.

Texas, 123 S. Ct. 2472 (2003). As argued in Section II below, in upholding the

Florida statute, Lofton directly conflicts with an entire body of substantive due

process jurisprudence, culminating in the Supreme Court’s decision in Lawrence.

Because of these equal protection and substantive due process precedents,

and in light of the “exceptional importance” of the issues raised, this decision

clearly warrants en banc review. 11th Cir. R. 35-3 (en banc consideration is

8

Eisenstadt v. Baird, 405 U.S. 438 (1972).

9

U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973).

10

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).

11

Romer v. Evans, 517 U.S. 620 (1996).

39

warranted for “precedent-setting error[s] of exceptional importance” or for

opinions that are “allegedly in direct conflict with precedent of the Supreme Court

or of this circuit”).

I. Equal Protection

A. The Rational Basis Test Established in the Analogous Cases of

Romer, Cleburne, Moreno, and Eisenstadt Requires that We Invalidate

this Statute.

The Equal Protection Clause “is essentially a direction that all persons

similarly situated should be treated alike.” Cleburne, 473 U.S. at 439. Yet

because of the practical need for legislators to draw distinctions among groups, a

classification that neither burdens a fundamental right nor targets a suspect class

will be analyzed using rational basis scrutiny, which means that it will be upheld

provided that it “bears a rational relation to some legitimate end.” Romer, 517

U.S. at 631. Although this is a deferential form of review, a court must still

identify legitimate state interests and find a “relationship between the

classification adopted and the object to be attained.” Id. at 632.

As will be explained more fully below, the classification at issue in this case

burdens personal relationships and exudes animus against a politically unpopular

group. Under these circumstances, statutes have consistently failed rational basis

40

review. Summarizing these cases, Justice O’Connor observed in her concurrence

in Lawrence that

[l]aws such as economic or tax legislation that are scrutinized under rational

basis review normally pass constitutional muster, since the Constitution

presumes that even improvident decisions will eventually be rectified by the

democratic processes. We have consistently held, however, that some

objectives, such as a bare . . . desire to harm a politically unpopular group,

are not legitimate state interests. When a law exhibits such a desire to harm

a politically unpopular group, we have applied a more searching form of

rational basis review to strike down such laws under the Equal Protection

Clause.

Lawrence, 123 S. Ct. at 2484-85 (O’Connor, J., concurring) (internal citations and

quotation marks omitted) (emphasis added). Justice O’Connor went on to explain

how this principle has been applied by the Court in prior equal protection cases:

We have been most likely to apply rational basis review to hold a law

unconstitutional under the Equal Protection Clause where, as here, the

challenged legislation inhibits personal relationships. In Department of

Agriculture v. Moreno, for example, we held that a law preventing those

households containing an individual unrelated to any other member of the

household from receiving food stamps violated equal protection because the

purpose of the law was to discriminate against hippies. The asserted

governmental interest in preventing food stamp fraud was not deemed

sufficient to satisfy rational basis review. In Eisenstadt v. Baird, we refused

to sanction a law that discriminated between married and unmarried persons

by prohibiting the distribution of contraceptives to single persons.

Likewise, in Cleburne v. Cleburne Living Center, we held that it was

irrational for a State to require a home for the mentally disabled to obtain a

special use permit when other residences – like fraternity houses and

apartment buildings – did not have to obtain such a permit. And in Romer

v. Evans, we disallowed a state statute that impos[ed] a broad and

undifferentiated disability on a single named group – specifically,

41

homosexuals. The dissent apparently agrees that if these cases have stare

decisis effect, Texas' sodomy law would not pass scrutiny under the Equal

Protection Clause, regardless of the type of rational basis review that we

apply.

Id., 123 S. Ct. at 2484-85 (emphasis added). An examination of these cases bears

out Justice O’Connor’s point and their direct application here. Regardless of how

one labels the rational-basis review employed in these cases, Florida’s ban on gay

adoption is simply not compatible with them.

All four of these precedents involved legislation targeting politically

unpopular groups to varying degrees: “hippies” (Moreno), unmarried users of birth

control (Eisenstadt), the mentally disabled (Cleburne), and homosexuals (Romer).

Moreover, in each case, the Court invalidated a law that had the effect of

inhibiting personal relationships of one sort or another: among mentally disabled

or unrelated persons who wished to share a common living space (Cleburne and

Moreno); among unmarried individuals who wished to engage in intimate relations

(Eisenstadt); and among individuals who wished to live without fear of state-

sanctioned discrimination prompted solely by their attachment to persons of the

same sex (Romer).

In Moreno, the Supreme Court found that excluding individuals unrelated to

other household members from the federal food stamp program was not rationally

42

related to the government’s asserted interest in minimizing administrative fraud.

413 U.S. at 535. In so finding, the Court observed that

even if we were to accept as rational the Government’s wholly

unsubstantiated assumptions concerning the differences between

‘related’ and ‘unrelated’ households we still could not agree with the

Government’s conclusion that the denial of essential federal food

assistance to all otherwise eligible households containing unrelated

members constitutes a rational effort to deal with these concerns.

Id. at 535-36. The Court pointed out that the statute already contained anti-fraud

provisions and that it provided for strict criminal penalties. Id. at 536.

Furthermore, the Court found that in “practical effect,” the statute did not operate

to further the prevention of fraud, since it only precluded groups that lived as one

economic unit, shared common cooking facilities, and customarily purchased food

in common. Id. at 537. The Court found that individuals with the financial means

to alter their living arrangements could avoid the exclusion by sidestepping any

one of the three conditions. For example, two wealthy unrelated individuals living

together could manage to purchase their groceries separately. In so doing, they

would effectively create two separate households, both eligible for assistance, and

thereby evade the application of the statute. Id. This being the case, it could not

truthfully be said that the purpose of the exclusion was to eliminate the operation

of fraud in the food stamp program. Instead, the statute irrationally punished

43

“only those persons who are so desperately in need of aid that they cannot even

afford to alter their living arrangements so as to retain their eligibility.” Id. at 538.

In Eisenstadt, the Court invalidated on rational basis grounds a

Massachusetts statute banning the distribution of contraceptives to unmarried

persons. The state’s highest court had defined the statute’s purposes as the

deterrence of premarital sex and the promotion of community health needs by

regulating the distribution of potentially harmful articles. The Supreme Court

looked behind the facial legitimacy of the state’s proffered justifications and

refused to accept that either rationale could “reasonably be regarded” as the

purpose of the statute. 405 U.S. at 448-49. The Court found that the first purpose,

deterring premarital sex, was “dubious” considering that Massachusetts law did

not limit the distribution of contraceptives when used to prevent the spread of

disease rather than to prevent pregnancy. Id. (internal quotation omitted). And in

allowing married persons to use contraceptives, the state’s law made no effort to

limit illicit sexual relations between married and unmarried persons. Thus, the

proffered rational basis was “illogical to the point of irrationality.” Id. at 451

(internal quotations omitted).12

12

As the Court explained, if the state genuinely considered contraceptives to pose a health risk,

it would have banned their use by both married and unmarried persons. Protecting only single

persons from the alleged dangers of contraceptives, and even then only when used to prevent

44

The Court concluded that “the Massachusetts statute is thus so riddled with

exceptions that deterrence of premarital sex cannot reasonably be regarded as its

aim.” Id. at 449. The Eisenstadt Court also discounted the state’s promotion of

health argument as “both discriminatory and overbroad,” and a transparent effort

to escape the reach of the Court’s holding in Griswold v. State of Connecticut, 381

U.S. 479 (1965). Eisenstadt, 405 U.S. at 450. The Court held on equal protection

grounds that “whatever the rights of the individual to access to contraceptives may

be, the rights must be the same for the unmarried and the married alike.” Id. at

453.

In Cleburne, the Court heard an equal protection challenge to a Texas city’s

zoning ordinance that required a special use permit in residential areas for the

operation of a home for the mentally disabled. The city argued that the ordinance

was justified by the “negative attitude of the majority of property owners” toward

institutions for the mentally disabled and by “the fears of elderly residents” living

near the institution. 473 U.S. at 448. It also defended the measure as an effort to

serve the best interests of the mentally disabled themselves, arguing that the

institution would be threatened by its location near a junior high school whose

pregnancy rather than the spread of disease, was “illogical to the point of irrationality.” Eisenstadt,

405 U.S. at 451 (internal quotations omitted).

45

students might harass the residents, its setting on a flood plain, and its size and

capacity. Finally, the city pointed to concerns over street congestion, fire hazards,

neighborhood serenity, and potential liability arising out of the conduct of the

mentally disabled. Id. at 449-50.

Again applying rational basis review, the Supreme Court first rejected the

city’s attempt to justify the statute by reference to a supposed communal aversion

to the mentally disabled. “[M]ere negative attitudes, or fear, unsubstantiated by

factors which are properly cognizable in a zoning proceeding,” the Court found,

“are not permissible bases for treating a home for the mentally retarded differently

from apartment houses, multiple dwellings, and the like.” Id. at 448.

With respect to the city’s other arguments, the Court “did not discount the

legitimacy of these interests, but rather found that, in creating the means used to

carry out these interests, the city had adopted a classification that had no rational

basis.” Williams v. Pryor, 240 F.3d 944, 952 (11th Cir. 2001) (discussing

Cleburne). The city’s fears that junior high school students would harass the

residents could not be credited because the junior high school itself had thirty

mentally retarded students in attendance. Cleburne, 473 U.S. at 449. The concern

of a possible flood was not tenable because the zoning ordinance allowed nursing

homes, homes for the elderly, sanitariums, and hospitals to be located in the same

46

area without permits. Id. The city’s fear of legal liability could not be credited

because fraternities and boarding houses did not require a permit. Id. Moreover,

fear of overcrowding in the institution was not reasonable when the city did not

require permits to protect against crowding in other facilities. Id. at 450. Finally,

there was no reason to believe that the institution would contribute to street

congestion more than any other similar institution. What the Court said of this last

argument applied with equal force to all of the city’s other rationales:

[T]his record does not clarify how . . . the characteristics of the

intended occupants of the Featherston home rationally justify denying

to those occupants what would be permitted to groups occupying the

same site for different purposes.

Id.

After discounting any connection between plausible legitimate government

interests and the statute in question, the Court concluded that “[t]he short of it is

that requiring the permit in this case appears to us to rest on an irrational prejudice

against the mentally retarded.” Id. In Cleburne, as in Eisenstadt, the Supreme

Court indicated that it simply disbelieved that the purposes articulated by the state

had any rational relationship to the ordinance and refused to accept the facial

legitimacy of the city’s proffered reasons. The Court held that none of the goals

47

fit the class of persons targeted except by way of confirming that animus towards

the mentally disabled had been the major impetus behind the statute.

Finally, in Romer the Court extended rational basis review to the area of

anti-homosexual discrimination. Colorado argued that the amendment struck

down in that case was justified by the state’s interests in protecting the

associational rights of landlords and employers with moral objections to

homosexuality and in “conserving resources to fight discrimination against other

groups.” 517 U.S. at 635.

The Court found it “impossible to credit” these proffered purposes. Id.

Noting that rational basis inquiry was meant to “ensure that classifications are not

drawn for the purpose of disadvantaging the group burdened by the law,” id. at

633, the Court held that

[e]ven laws enacted for broad and ambitious purposes often can be

explained by reference to legitimate public policies which justify the

incidental disadvantages they impose on certain persons. Amendment

2, however, in making a general announcement that gays and lesbians

shall not have any particular protections from the law, inflicts on

them immediate, continuing, and real injuries that outrun and belie

any legitimate justifications that may be claimed for it.

Id. at 635 (emphasis added). Because the amendment bore no credible

relationship to the state’s proffered legitimate justifications, the Court accepted

“the inevitable inference that the disadvantage imposed is born of animosity

48

toward the class of persons affected.” Id. at 634. And it concluded that, whatever

else might be said of the amendment, it “offended” the “conventional and

venerable” principle that “a law must bear a rational relationship to a legitimate

governmental purpose.” Id. at 635.

In all four cases, the Court concluded that the asserted justifications were

not rationally related to the classification. Thus, the Court inferred that animus

was the motivation behind the legislation and established that such a motivation

could not constitute a legitimate state interest.13 As Justice O’Connor noted in

Lawrence, “if these cases have stare decisis effect, Texas’ sodomy law would not

pass scrutiny under the Equal Protection Clause, regardless of the type of rational

13

Judge Birch incorrectly claims that I have argued that these cases stand for the proposition that

rational-basis review should focus on the actual reasons for enacting a statute. See Special

Concurrence by Judge Birch to Denial of Rehearing En Banc at *6, 8, 14. On the contrary, I

recognize that if Florida’s post hoc justifications were able to rationally account for its ban on

homosexual adoption, then Florida’s law might be constitutional notwithstanding some evidence in

the legislative record that the state’s actual motivation was animus. Thus, the suggestion that I have

invented some alternative “animus/analysis” theory is a complete distortion of my position. Id. at

*6. Instead, I merely contend that the Supreme Court’s decisions in Eisenstadt, Moreno, Cleburne,

and Romer require that we examine Florida’s post hoc rationales to determine if there is some

conceivable legitimate government interest that can plausibly account for Florida’s law. There is

nothing novel about this kind of analysis. As Judge Birch himself recognizes, in certain

circumstances, a court may infer that a statute is motivated by animus or irrational prejudice when

the proffered rationales cannot rationally explain the actual operation of the statute. Id. at *9-11.

Because animus and irrational prejudice are not legitimate governmental purposes, such a statute will

fail rational-basis scrutiny. Id. at *10-12. I have simply applied these principles to the facts of this

case, as I am required to do in faithfully applying Supreme Court precedent. As I explain in detail

below, I do not believe Judge Birch has offered any plausible explanation for Florida’s categorical

determination that homosexuals are inherently and always unfit to serve as adoptive parents. I fail

to see how any objective observer could think such a law is rational and consistent with the most

basic, minimal notions of equal protection under law.

49

basis review that we apply,” 123 S. Ct. at 2485. So too does Florida’s law fail to

survive any form of rational basis review. Here, there is no question that a

politically unpopular group is being targeted, that the challenged legislation

inhibits personal relationships, and that there is no legitimate rational relationship

between Florida’s proffered justifications and its sweeping categorical adoption

ban against homosexuals.

B. Subjected to the Identical Analysis Used in Eisenstadt, Cleburne,

Moreno, and Romer, the Florida Ban Would be Unconstitutional.

Like the justifications for the statutes in the cases discussed above, Florida’s

proffered justifications for the categorical ban here are false, do not rationally

relate to the best interests of children, and are simply pretexts for impermissible

animus and prejudice against homosexuals. The panel in Lofton credits the state’s

assertion that the statutory ban is

designed to create adoptive homes that resemble the nuclear family as

closely as possible. Florida argues that the statute is rationally related to

Florida's interest in furthering the best interests of adopted children by

placing them in families with married mothers and fathers. Such homes,

Florida asserts, provide 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. In particular, Florida

emphasizes a vital role that dual-gender parenting plays in shaping sexual

and gender identity and in providing heterosexual role modeling. Florida

argues that disallowing adoption into homosexual households, which are

necessarily motherless or fatherless and lack the stability that comes with

50

marriage, is a rational means of furthering Florida's interest in promoting

adoption by marital families.

358 F.3d at 818-19 (emphasis added).

This rhetoric boils down to the argument that Florida prohibits homosexuals

from being considered as adoptive parents because it wishes to place children with

married couples. It wishes to do so for two alleged reasons: (1) to provide

“stability” in the home, which the panel apparently believes can only be provided

by married couples representing the “nuclear” family model; and (2) to properly

shape heterosexual “sexual and gender identity,” which the panel asserts should be

accomplished by married couples.

Like the proffered reasons in Eisenstadt, which were “so riddled with

exceptions” that the state’s asserted goal could not “reasonably be regarded as its

aim,” 405 U.S. at 449, the state’s proffered rational basis for the statute here

(providing adopted children with married couples as parents) cannot be

legitimately credited because it fails the equal protection requirement that “all

persons similarly situated should be treated alike.” Cleburne, 473 U.S. at 439. As

noted at the beginning of this dissent, it is plainly false that Florida has established

a preference for “married mothers and fathers” as adoptive parents. The 1977

statute prohibiting homosexual adoption expresses no preference whatsoever for

51

married couples, expressly permitting an “unmarried adult” to adopt. Fla. Stat. §

63.042(1)(b) (2003). Moreover, the DCF administrative regulations that are

inextricably tied to Florida’s adoption statutes do not prefer married over single

candidates for adoption.14 In short, the Florida legislature never did, and the

Florida executive no longer does, express a preference for married over unmarried

couples or singles in the area of adoption. The fact that Florida places children for

adoption with single parents directly and explicitly contradicts Florida’s post hoc

assertion that the ban is justified by the state’s wish to place children for adoption

only with “families with married mothers and fathers.” This contradiction alone is

enough to prove that the state’s alleged reasons are “illogical to the point of

irrationality.” Eisenstadt, 405 U.S. at 451.

However, instead of acknowledging this glaring gap between the ban on

homosexual adoption and the state’s purported justification, as did the Supreme

Court in invalidating the statutes in Eisenstadt, Moreno, Cleburne, and Romer, the

Lofton panel stretches mightily to construct a hypothetical to bridge this gap. “It

14

Fla. Admin. Code Ann. r. 65C-16.005 (2004). It should also be noted that even under the

earlier version of the DCF regulations unmarried couples were only barred from adopting jointly.

Fla. Admin. Code Ann. r. 65C-16.005 (2002). As single persons, heterosexuals have never been

categorically barred from adopting in Florida. The April 2002 revision of the regulations provided

that DCF “will accept the application of single persons seeking to adopt a child.” This remains true

under the current regulations. Defendants and plaintiffs agree that over twenty-five percent of

adoptions out of foster care in Florida are by single people, and that in the district covering Miami-

Dade County, this figure is over forty percent. R. at 124 (Stipulation at ¶¶ 24-25).

52

is not irrational,” the panel opines, “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.” Lofton, 358 F.3d at 822. The panel’s contrived hypothetical

offering blatantly ignores not only the absence of any preference in Florida’s

statute for married couples but also the realities of the adoption process.

Evaluations of prospective parents are based on present, not “eventual,” status and

conditions.15 Florida does not ask for a commitment of plans to marry someday in

the future and permits single adults to adopt without making inquiry into whether

they have immediate, or even long-range, marriage plans or prospects. Indeed,

that many individuals choose to adopt outside of marriage is an indication that

adoption and commitment to a permanent adult relationship are completely

separate decisions.16 Moreover, experience leads one to believe that single

heterosexuals who adopt are less likely to marry in the future, not more likely.

15

In a different context, a much more plausible hypothetical clarifies the reality of placement on

the basis of existing conditions. If an applicant were unemployed and had no immediate job

prospects or other present means of financially supporting a child, no placement agency would even

consider permitting an adoption in the hopes that “some day” the adopting parent would be able to

obtain employment, even if the applicant were a college graduate or had other job skills. The

relevant inquiry has to be the conditions into which the child will be placed now.

16

That the state endorses adoption by single parents in the same fashion as married couples

reflects the fact that the best interests of the child depend upon considerations other than access to

a two-parent household. Indeed, in many cases homosexual couples can provide a stable, two-parent

household that singles, by definition, cannot.

53

Finally, this speculative hypothesis also fails to take account of “non-practicing

homosexuals” who are not likely to marry but can adopt under Florida law.17 The

Supreme Court found the state’s arguments in Eisenstadt to be a futile and

transparent move to escape the reach of the Court’s decision in Griswold. 405

U.S. at 450. The hypothetical posited by the Lofton panel demonstrates a

comparable and equally transparent attempt to ignore the equal protection cases

applicable here.

In addition to its failure to meaningfully distinguish homosexuals from

single heterosexuals, the panel never explains why it is rational to believe that

homosexuals, as a class, are unable to provide stable homes and appropriate role

models for children. With respect to the first of these arguments, there is

absolutely no record evidence to show that homosexuals are incapable of

providing the permanent family life sought by Florida. To the contrary, as the

facts in this case suggest, many children throughout the country are lovingly and

successfully cared for by homosexuals in their capacity as biological parents,

foster parents, or legal guardians.18 Furthermore, it is not marriage that guarantees

17

Cox, 627 So. 2d at 1215, held that for purposes of the statute at issue, the term “homosexual”

is “limited to applicants who are known to engage in current, voluntary homosexual activity.”

18

Yet another disturbing aspect of Florida’s ban is that, while permitting single persons to adopt,

this statute could conceivably ban the homosexual partner of a biological parent from adopting the

partner’s biological child.

54

a stable, caring environment for children but the character of the individual

caregiver.19 Indeed, given the reality of foster care in Florida, the statute actually

operates to impede, rather than promote, the placement of a child into a permanent

family. Florida's statute expresses a clear intent “to protect and promote the

well-being of persons being adopted . . . and to provide to all children who can

benefit by it a permanent family life.” Fla. Stat. § 63.022(3) (2003). Yet,

19

The most recent U.S. Census Bureau statistics indicate that about 50% of first marriages for

men under age 45 may end in divorce. The figures for the first marriages of women in the same age

group range between 44 and 52%. Rose M. Kreider and Jason M. Fields, “Number, Timing, and

Duration of Marriages and Divorces: Fall 1996,” Current Population Reports (P70-80) at 18.

Washington, DC: U.S. Census Bureau, 2001. These statistics are confirmed by the findings of the

National Center for Health Statistics, which released a report in 2001 finding that 43% of first

marriages end in separation or divorce within fifteen years. Matthew Bramlett & William Mosher,

“First Marriage Dissolution, Divorce, and Remarriage: United States,” Advance Data from Vital and

Health Statistics (2001). As of 2001, Florida ranked with Mississippi as the state with the sixth

highest divorce rate in the nation. U.S. Census Bureau, Statistical Abstract of the United States

(2003) at 100. This ranking includes the District of Columbia but not California, Colorado, Indiana,

and Louisiana, which did not report divorce statistics to the Census Bureau. As Florida Statute §

63.042(1)(b) makes explicit, the fact that two persons are married does not make them fit parents or

tell us how or even whether they will fulfill the responsibilities of caring for children. There is

nothing selective about the institution of marriage; all kinds of persons who would not be regarded

as suitable adoptive parents are admitted to the responsibilities of marriage, and marriage does not

insulate spouses or children from the neglect and abuse that occur within it. In its annual national

report on child abuse and neglect mandated under the Child Abuse and Prevention and Treatment

Act (“CAPTA”), the U.S. Department of Health and Human Resources found that 81% of the

perpetrators were parents defined as birth parents, adoptive parents, and stepparents. Similarly, in

Florida, the report indicates that 78% of all reported child maltreatment cases were committed by

parents. See Admin. for Children & Families, U.S. Dep’t of Health & Human Serv., Child

Maltreatment 2002: Reports from the States to the National Child Abuse and Neglect Data Systems

- National Statistics on Child Abuse and Neglect (2004). In 2002, a total of 121,834 cases of

domestic violence were reported to police law enforcement agencies in the state of Florida. Of that

number, 26% (31,874) of the victims were spouses while 8% (9,190) of the victims were children.

See Fla. Statistical Analysis Ctr., Fla. Dep’t of Law Enforcement, Florida Uniform Crime Report

(1992-2002).

55

Florida’s foster care system has a backlog of more than 3,400 children in it, far

more than the number of married couples eligible to adopt.20 Given this backlog,

the state’s ban on gay adoption does nothing to increase the number of children

being adopted, whether by married couples or anyone else. The state is evidently

willing to allow children to live with the potential uncertainties of several foster-

care placements rather than enjoy the security and certainty of an adoptive home

with one or two caring parents who are also homosexual.21

Nor does the panel offer a reason for why it is rational to credit the state’s

second argument: that homosexuals are incapable of providing good role models.

The panel claims that “[heterosexual] children will need education and guidance

after puberty concerning relationships with the opposite sex. . . . It is in the best

interests of a child if his or her parents can personally relate to the child’s

problems and assist the child in the difficult transition to heterosexual adulthood.”

20

R. at 124 (Stipulation at ¶ 15).

21

In its August 2001 “Child and Family Services Review Final Assessment,” the U.S.

Department of Health and Human Services found that Florida failed to meet the national standard

for stability of foster care placements (measured in terms of the percentage of children who

experience more than two placements during their first twelve months of placement). The same

assessment found that, in over 40% of the cases reviewed, Florida failed to meet its own statutorily

specified permanency goals for children in its foster care system. (Florida law requires that a

permanent living situation be sought for each child who has remained in out-of-home care for twelve

consecutive months, and that progress towards this permanency goal be reviewed on a biannual

basis.) Admin. for Children & Families (Region IV), U.S. Dep’t of Health & Human Serv., Child

and Family Services Review Final Assessment (2001) at 14-17.

56

Lofton, 358 F.3d at 822 (quoting Cox, 627 So. 2d at 1220, which predates

Lawrence and relies on Bowers). Is the panel suggesting that heterosexual parents

are necessary in order to tell children about their own dating experiences after

puberty? For anyone who has been a parent, this will no doubt seem a very

strange, even faintly comical, claim. There is certainly no evidence that the ability

to share one’s adolescent dating experiences (or lack thereof) is an important,

much less essential, facet of parenting. The difficult transition to adulthood is a

common human experience, not an experience unique to human beings of a

particular race, gender, or sexual orientation. It is downright silly to argue that

parents must have experienced everything that a child will experience in order to

guide them. Indeed, that will generally not be the case. For example, immigrant

parents help their children adjust to a world and culture they have not known. It

cannot be suggested that such individuals are unfit to parent any more than it

could be suggested that a mother is unfit to parent a son or that a white person is

unfit to parent an African-American child.22 Furthermore, the panel’s argument

completely neglects to consider the situation of gay children of heterosexual

parents. Children simply need parents who will love and support them.

22

Nor, for example, could anyone responsibly suggest that priests must be married in order to

provide marriage counseling, or that psychiatrists must have suffered every ill they treat.

57

In addition to this contrived argument about teenage dating advice, the

panel suggests that placing children with homosexual parents may make it more

likely that children will become homosexual, referring cryptically to the “vital role

that dual-gender parenting plays in shaping sexual and gender identity and in

providing heterosexual role modeling.” Lofton, 358 F.3d at 818 (emphasis

added). In our democracy, however, it is not the province of the State, even if it

were able to do so, to dictate or even attempt to influence how its citizens should

develop their sexual and gender identities. This approach views homosexuality in

and of itself as a social harm that must be discouraged, and so demeans the dignity

of homosexuals, something that Lawrence specifically proscribes. Lawrence, 123

S. Ct. at 2482, 2484 (finding that gays and lesbians are “entitled to respect for

their private lives.”).

Finally, the panel also intimates in dicta that Florida has a legitimate interest

in defending public morality by expressing disapproval of homosexuality. Lofton,

358 F.3d at 819 n.17. But moral disapproval of disfavored groups “is an interest

that is insufficient to satisfy rational basis review under the Equal Protection

Clause.” Lawrence, 123 S.Ct. at 2486 (O’Connor, J., concurring). Moreno

established that “if the constitutional conception of ‘equal protection of the laws’

means anything, it must at the very least mean that a bare . . . desire to harm a

58

politically unpopular group cannot constitute a legitimate government interest.”

413 U.S. at 534. As the Lawrence Court made clear, “[o]ur obligation is to define

the liberty of all, not to mandate our own moral code.” 123 S. Ct. at 2480 (quoting

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 850

(1992)).

Nor may the state hide behind a suggestion that it is attempting to protect

children from disapproval at large in society. Florida courts have specifically

rejected moral disapprobation of homosexuality as a justification for granting

custody of a child to one or another biological parent. See Maradie v. Maradie,

680 So. 2d 538 (Fla. Dist. Ct. App. 1996) (holding that a lower court’s finding as

to the effect of a homosexual environment on a child is not a proper subject of

judicial notice, and that it requires reversal and remand for a new custody

determination); Jacoby v. Jacoby, 763 So. 2d 410 (Fla. Dist. Ct. App. 2000) (citing

Palmore v. Sidoti, 466 U.S. 429, 433 (1984), and holding that a lower court’s

reliance on perceived biases against homosexuality is an improper basis for a

residential custody determination).

Ultimately, the breadth of the categorical adoption ban “outrun[s] and

belie[s]” the state’s asserted justifications. Romer, 517 U.S. at 635. As Cleburne

discounted the state’s asserted reason of protecting the public from fraud because

59

the state had adequate anti-fraud provisions with strict penalties, Florida’s

rationale should likewise be discounted, given that Florida has explicitly tailored

provisions to protect children placed in adoptive homes. Florida Statute §

63.092(3) (2003) requires a preliminary and thorough home study of prospective

adoptive parents and the state uses its full power to screen all applicants and bar

adoption by anyone not deemed to be a fit parent. The adoption statute accords

everyone other than homosexuals the benefit of an individualized consideration

that is directed toward the best interests of the child. Child abusers, terrorists,

drug dealers, rapists and murderers are not categorically barred by the adoption

statute from consideration for adoptive parenthood in Florida.23 On the other

hand, individuals who take children into their care, including unwanted children,

such as those who are HIV-positive, and who have raised them with loving care

for years are categorically barred from adopting if they happen to be homosexual.

In the context of adoption, this disparity of treatment on the face of the statute

amounts to the purest form of irrationality.

23

The statute’s preliminary home study requirement includes a check of the DCF central abuse

registry and statewide criminal records. Fla. Stat. § 63.092(3)(b) (2003). DCF administrative

regulations and Florida’s labor code (not the Florida adoption statute) bar those convicted of crimes

against children and certain crimes of violence from adopting. But these same provisions permit

persons with a felony conviction for physical assault, battery, or a drug-related offense to adopt if

the offense was committed more than five years before. Fla. Admin. Code Ann. r. 65C-

16.005(9)(a)(3) (2003) (referencing Fla. Stat. § 435.045(1)(a)(1) & (2) (2001)).

60

Just as troubling, even where a foster relationship is comparable to the most

stable and caring of biological parent-child relationships, the state may remove a

child from that relationship simply because the parent is a homosexual.24 In light

of these considerations, it is no exaggeration to say that the best interests of the

child not only fail to justify or support the ban on homosexual adoption, but that

those interests are actually subordinated to the state’s evident need to discriminate

on the basis of sexual orientation.

The Equal Protection Clause does not permit a classification of persons

undertaken for its own sake. "[C]lass legislation . . . [is] obnoxious to the

prohibitions of the Fourteenth Amendment. . . ." Civil Rights Cases, 3 S.Ct. 18,

30 (1883). When there is no reason to believe that the disadvantaged class is

different, in relevant respects, from similarly situated classes, the Supreme Court

has held that irrational prejudice can be inferred as the basis for a classification.

Cleburne, 473 U.S. at 449-50. Here, irrational prejudice can be inferred as the

basis for this classification because there is no difference in relevant respects

between single heterosexual persons and single homosexual persons with

reference to the state’s purported justification for the ban in the statute. Moreover,

24

In response to the ACLU’s June 2001 request for a guarantee that Doe would not be taken away

from Lofton, the DCF responded that it “is left with no legal alternative but to make appropriate

efforts to place [Doe] for adoption.” Appellees’ Br. at 11 (quoting R4-132, Ex. G).

61

when all the proffered rationales for a law are clearly and manifestly implausible, a

reviewing court may infer that animus is the only explicable basis. Romer, 517

U.S. at 632, 635. Since Florida’s rationale is not plausible given that single

persons may adopt, the inference is obvious that Florida’s decision to single out

homosexuals is based solely on anti-gay animus. Unsurprisingly, animus is just

what the legislative history of Florida’s ban confirms.

C. Legislative History

The Florida statute was enacted after an organized and relentless anti-

homosexual campaign led by Anita Bryant, a pop singer who sought to repeal a

January 1977 ordinance of the Dade County Metropolitan Commission prohibiting

discrimination against homosexuals in the areas of housing, public

accommodations, and employment. Bryant organized a drive that collected the

10,000 signatures needed to force a public referendum on the ordinance.25 In the

course of her campaign, which the Miami Herald described as creating a “witch-

hunting hysteria more appropriate to the 17th century than the 20th,”26 Bryant

25

See generally “Battle over Gay Rights,” Newsweek, June 6, 1977.

26

Bill Paterson, “Fear Intense on Both Sides of Gay Rights Vote Tuesday,” Wash. Post, June 6,

1977.

62

referred to homosexuals as “human garbage.”27 She also promoted the insidious

myth that schoolchildren were vulnerable to molestation at the hands of

homosexual schoolteachers who would rely on the ordinance to avoid being

dismissed from their positions.28

In response to Bryant’s efforts, Senator Curtis Peterson introduced

legislation in the Florida Senate banning both adoptions by and marriage between

homosexuals. The legislative history reveals the very close and utterly transparent

connection between Bryant’s campaign and the Peterson bills. At the May 3, 1977

hearings of the Senate Judiciary Civil Committee, for example, Senator Peterson

observed that “it is a possible problem, constantly in the news.”29 Senator George

Firestone commented that “this [gay rights controversy] has totally polarized [my]

community unnecessarily.”30 And Senator Don Chamberlin explicitly tied the

Bryant campaign to the proposed ban on homosexual adoption, arguing that the

latter would never have arisen without the ruckus over the Dade County

27

“Battle over Gay Rights,” Newsweek, June 6, 1977; Laura Benkov, Reinventing the Family:

The Emerging Story of Lesbian and Gay Parents 83 (1994).

28

“Battle over Gay Rights,” Newsweek, June 6, 1977.

29

Tape recording of the Florida Senate Judiciary Civil Committee proceedings, May 3, 1977

(copy of original in the Florida State Archives).

30

Id.

63

antidiscrimination ordinance.31 The impetus for Florida’s adoption ban exactly

parallels the impetus for the state constitutional amendment struck down in

Romer. See Romer, 517 U.S. at 623-24 (“The impetus for the amendment and the

contentious campaign that preceded its adoption came in large part from [the

campaigns against antidiscrimination] ordinances that had been passed in various

Colorado municipalities.”); Moreno, 413 U.S. at 534 (legislative history indicative

of purpose to prevent “hippies” and “hippie communes” from participating in food

stamp program).

The Florida legislature’s intention to stigmatize and demean homosexuals is

further confirmed by the passage, on May 30, 1977, of a House amendment that

allowed for public disclosure of the reasons for a denial of an application for

adoption. The explicit purpose of this amendment was to protect non-homosexual

prospective parents whose applications were denied for reasons other than sexual

orientation from the stigma of being thought to be homosexual.32 The Senate

provided added coverage against stigmatization for non-homosexual applicants

31

Id.; see also Tape recording of the Florida House of Representatives Judiciary Committee

proceedings, May 19, 1977 (copy of original in the Florida State Archives) (representative stating

that “the majority of the committee supports Ms. Bryant and her move to do what she is doing.”).

32

Tape recording of the Florida House of Representatives proceedings, May 30, 1977 (copy of

original in the Florida State Archives).

64

with its May 31 amendment requiring courts, when dismissing a petition for

adoption, to state with specificity the reasons for doing so.33

Throughout all of these proceedings, it could hardly be said that there was

any discussion of the “best interests of the child” standard. The only legislator

who bothered to inject the concept was Senator Chamberlin, who tried to block the

bill, noting that there was no incompatibility at all between homosexuals and the

best interests of children.34 Another senator simply stated that “we have a

responsibility to provide children with a wholesome atmosphere.”35

As the House and Senate gave their final approval to the Peterson bills on

May 31, Senator Peterson stated that his bills were a message to homosexuals that

“[w]e’re really tired of you. We wish you would go back into the closet.”36 On

June 8, 1977, exactly one day after Dade County voters repealed the

33

Tape recording of the Florida Senate proceedings, May 31, 1977 (copy of original in the Florida

State Archives). This Senate amendment is now codified as Fla. Stat. § 63.142(3)(b) (2003).

34

Tape recording of the Florida Senate Judiciary Civil Committee proceedings, May 3, 1977.

35

Tape recording of the Florida Senate proceedings, May 11, 1977 (copy of original in the Florida

State Archives).

36

“Gay Bills Pass Both Chambers,” Florida Times Union, June 1, 1977. Senator Peterson is also

quoted in this UPI report as stating that “[t]he problem in Florida is that homosexuals are surfacing

to such an extent that they’re beginning to aggravate the ordinary folks, who have a few rights of

their own.”

65

antidiscrimination ordinance,37 the Governor of Florida signed the Peterson bills

into law, in what can only be seen as a deliberate acknowledgment of the

orchestration between Bryant’s campaign and the legislature’s actions.38 In short,

the legislative history shows that anti-gay animus was the major factor – indeed

the sole factor – behind the law’s promulgation, thereby confirming that the

standard of review in this case is controlled by Eisenstadt, Cleburne, Romer, and

Moreno.

Whereas the Texas sodomy statute struck down in Lawrence treated

homosexuals as criminals, Florida’s ban on gay adoption treats criminals with

more dignity than homosexuals. Nothing more clearly raises the “inevitable

inference that the disadvantage imposed is born of animosity toward the class of

persons affected,” Romer, 517 U.S. at 634, than this disparity of treatment.

II. SUBSTANTIVE DUE PROCESS

Although I believe that this case can be resolved solely on equal protection

grounds, without considering Lawrence, I address the independent basis of

37

The antidiscrimination ordinance, however, has since been repassed by the Miami-Dade

County Commission. See Miami-Dade County Code of Ord., Ch. 11A, Art. 1(1) (1997-98) (“It is

hereby declared to be the policy of Dade County . . . to eliminate and prevent discrimination in

employment, family leave, public accommodations, credit and financing practices, and housing

accommodations because of . . . sexual orientation.”).

38

Assoc. Press, June 8, 1977.

66

substantive due process because Lofton incorrectly concludes that Lawrence did

not recognize a fundamental right to or liberty interest in sexual privacy. As I

explain below, Lawrence held that consenting adults have a right under the Due

Process Clause to engage in private sexual conduct, including homosexual

conduct. Because Florida’s law punishes the exercise of this right by denying all

active homosexuals the ability to be considered as adoptive parents, we are

required to subject Florida’s law to heightened scrutiny – not the cursory,

attempted rational-basis analysis the panel employs. In addition to its failure to

apply heightened scrutiny, the panel makes further errors of law in attempting to

evade the application of Lawrence. It makes erroneous statements about the

proper use of history and tradition in a substantive due process analysis, and

mistakenly claims that Lawrence does not apply here because adoption is a

privilege and not a right, and because Florida’s statute is a civil rather than

criminal law. These reasons are not only unsupported by, but are directly contrary

to, Supreme Court precedent.

A. Lawrence Reaffirmed a Fundamental Right or Liberty Interest to

Engage in Private Intimate Sexual Conduct.

67

The doctrine of substantive due process requires, first, that every law must

address in a relevant way only a legitimate governmental purpose.39 In other

words, no law may be arbitrary and capricious but rather must address a

permissible state interest in a way that is rationally related to that interest. As a

consequence, any law challenged as violating a fundamental right or liberty

interest must survive rational-basis review.

However, the Supreme Court has found that some decisions are so

fundamental and central to human liberty that they are protected as part of a right

to privacy under the Due Process Clause, and that the government may

constitutionally restrict these decisions only if it has more than an ordinary run-of-

39

Judge Birch is, thus, mistaken that I view substantive due process as always synonymous with

fundamental-rights analysis. See Special Concurrence by Judge Birch to Denial of Rehearing En

Banc at *25. I agree that rational-basis review is also part of the doctrine of substantive due process.

The source of my disagreement with Judge Birch is based on his attempt to artificially downgrade

the Lawrence decision to a rational-basis holding, which, as I explain infra, fails to provides a

coherent and plausible interpretation of the entire opinion.

68

the-mill governmental purpose.40 Included within this right to privacy is the

ability to make decisions about private sexual matters.41

In invalidating the sodomy statute at issue in Lawrence, the Court

reaffirmed this right of sexual privacy, finding that private homosexual conduct is

likewise encompassed within it.42 The Court stated that the Due Process Clause

gives homosexuals “the full right to engage in [private sexual] conduct without

intervention of the government.” Lawrence, 123 S. Ct. at 2484. There can be no

doubt that the Court’s conclusion here is a binding holding. From the outset of its

opinion, the Court stated that it had granted certiorari specifically to consider

“[w]hether Petitioners’ criminal convictions for adult consensual sexual intimacy

40

The Supreme Court has explained that this right includes the ability of adults to make decisions

relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); family relationships, Prince v.

Massachusetts, 321 U.S. 158, 165-66 (1944); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-

42 (1942); contraception, Griswold, 381 U.S. at 485-86 and Eisenstadt, 405 U.S. at 453-55; child

rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) and Meyer v.

Nebraska, 262 U.S. 390, 399-400 (1923); and abortion, Roe v. Wade, 410 U.S. 113, 153 (1973).

41

See, e.g., Carey v. Population Services Int’l, 431 U.S. 678, 685 (1977) and Griswold, 381 U.S.

at 485-86 (right to use contraception); Casey, 505 U.S. at 869 (right to seek out an abortion).

42

From its opening paragraph, the Court emphasized that

[l]iberty protects the person from unwarranted government intrusions into a dwelling

or other private places. In our tradition the State is not omnipresent in the home.

And there are other spheres of our lives and existence, outside the home, where the

State should not be a dominant presence . . . . The instant case involves liberty of the

person both in its spatial and more transcendent dimensions.

Lawrence, 123 S. Ct. at 2475.

69

in the home violate their vital interests in liberty and privacy protected by the Due

Process Clause of the Fourteenth Amendment?” Id. at 2476 (internal quotation

marks and citation omitted) (emphasis added). While the Court also granted

certiorari to address whether Texas’s sodomy statute violated the Equal Protection

Clause,43 the Court explicitly decided to rest its holding on a substantive due

process analysis because it found that if a sodomy law “remain[ed] unexamined

for its substantive validity, its stigma might remain even if it were not enforceable

as drawn for equal protection reasons.” Id. at 2482.44 Accordingly, the Court

wrote that the “case should be resolved by determining whether the petitioners

were free as adults to engage in the private [sexual] conduct in the exercise of their

liberty under the Due Process Clause of the Fourteenth Amendment.” Id. at 2476.

In resolving this issue, the Court retraced its substantive due process

jurisprudence by discussing the fundamental rights cases of Griswold,

43

Unlike the sodomy statute at issue in Lawrence, which only applied to homosexual conduct,

the Georgia statute in Bowers criminalized acts of sodomy engaged in by both heterosexuals and

homosexuals. See Bowers v. Hardwick, 478 U.S. 186, 188 n.1 (1986). The Lawrence Court

indicated that the sodomy statute before it could have been invalidated using an equal protection

analysis. 123 S. Ct. at 2482. Indeed, this was the conclusion of Justice O’Connor in her

concurrence. Id. at 2484-88 (O’Connor, J., concurring).

44

The Lawrence majority went on to state that “[w]hen homosexual conduct is made criminal

by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons

to discrimination both in the public and in the private spheres.” 123 S. Ct. at 2482.

70

Eisenstadt,45 Roe, and Carey and emphasized the breadth of their holdings as

involving private decisions regarding intimate physical relationships. Id. at 2476-

77. Beginning with Griswold, the Lawrence Court found that its prior decisions

confirmed “that the protection of liberty under the Due Process Clause has a

substantive dimension of fundamental significance in defining the rights of the

person” and “that the right to make certain decisions regarding sexual conduct

extends beyond the marital relationship.” Id. at 2477 (summarizing Griswold,

Eisenstadt, Roe, and Carey).

Because of the existence of this right to make private decisions regarding

sexual conduct, the Lawrence Court was compelled to overrule the anomaly of

Bowers, which had failed to acknowledge this right in permitting Georgia to

criminalize sodomy. See Bowers, 478 U.S. at 194-96. Lawrence found that at the

time of Bowers the Court’s prior holdings had already made “abundantly clear”

that individuals have a right to make decisions “‘concerning the intimacies of their

physical relationship[s], even when not intended to produce offspring.’”

Lawrence, 123 S. Ct. at 2483 (quoting Bowers, 478 U.S. at 216 (Stevens, J.,

45

Although Eisenstadt was decided on equal protection grounds, Lawrence noted that Eisenstadt

“went on to state the fundamental proposition that the law impaired the exercise of . . . personal

rights.” 123 S. Ct. at 2477. Further, while Lawrence cited Romer v. Evans, 517 U.S. 620 (1996),

as an example of how Bowers had been cast into doubt, the Court immediately declined to decide

the case under Romer’s equal protection rationale, instead insisting that the decision be resolved on

substantive due process grounds. Id. at 2482.

71

dissenting)).46 On this basis, the Court concluded that “Bowers was not correct

when it was decided, and it is not correct today.” Lawrence, 123 S. Ct. at 2484.47

46

In overruling Bowers, Lawrence explained that

our laws and tradition afford constitutional protection to personal decisions relating

to marriage, procreation, contraception, family relationships, child rearing, and

education. . . . ‘These matters, involving the most intimate and personal choices a

person may make in a lifetime, choices central to personal dignity and autonomy, are

central to the liberty protected by the Fourteenth Amendment. At the heart of liberty

is the right to define one’s own concept of existence, of meaning, of the universe, and

of the mystery of human life. Beliefs about these matters could not define the

attributes of personhood were they formed under compulsion of the State.’

Id. at 2481 (quoting Casey, 505 U.S. at 851). The Court unequivocally stated that “[p]ersons in a

homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.

The decision in Bowers would deny them this right.” Id. at 2482.

47

Given the Lawrence Court’s statement in 2003, I fail to understand Judge Birch’s reliance on

a footnote from the Supreme Court’s 1977 decision in Carey, where the Court indicated in dicta that

it had not “definitively answered” the extent to which the Due Process Clause protects the private

sexual conduct of consenting adults. Special Concurrence by Judge Birch to Denial of Rehearing

En Banc at *15 (citing Carey, 431 U.S. at 688 n.5). Obviously, Carey does not resolve in any way

the meaning of a case that comes twenty-six years later. Nor does it prevent Lawrence from

answering the very question posed in Carey’s footnote. As I discuss extensively in this dissent,

Lawrence does precisely this in affirming the right of consenting adults to make private sexual

decisions. As I also explain, this could not have been a new right. Carey’s footnote notwithstanding,

the Lawrence Court determined that its pre-Bowers decisions, properly understood from its later

vantage point, had already recognized a right to sexual privacy. This is the only way to make sense

of the Lawrence Court’s statements that Bowers was “not correct when it was decided,” and that its

decisions before Bowers had already made “abundantly clear” that adults have a right to make

decisions “concerning the intimacies of their physical relationship[s].” Lawrence, 123 S. Ct. at

2483-84 (internal quotation marks and citation omitted).

72

In overruling Bowers, Lawrence found that Bowers “misapprehended the

claim of liberty there presented” when it framed the issue before it as whether the

Constitution protects “a fundamental right to engage in consensual sodomy”:

To say that the issue in Bowers was simply the right to engage in certain

sexual conduct demeans the claim the individual put forward, just as it

would demean a married couple were it to be said marriage is simply about

the right to have sexual intercourse. The laws involved in Bowers and here

are, to be sure, statutes that purport to do no more than prohibit a particular

sexual act. Their penalties and purposes, though, have more far-reaching

consequences, touching upon the most private human conduct, sexual

behavior, and in the most private of places, the home.

Lawrence, 123 S. Ct. at 2478 (emphasis added). Just as marriage involves much

more than simply the right to have sexual intercourse, the right to participate in a

homosexual relationship extends far beyond the ability to engage in homosexual

sodomy. Bowers was therefore wrong to have focused on a particular sexual act

instead of upon the right to sexual privacy which encompasses acts of adult

consensual sexual intimacy.

Lawrence indicated that the question that Bowers should have asked is

whether adults have a right to engage in “private [sexual] conduct in the exercise

of their liberty under the Due Process Clause of the Fourteenth Amendment.” Id.

at 2476. In answering this question, Lawrence expressly adopted the reasoning of

Justice Stevens’ dissent in Bowers:

73

[I]ndividual decisions by married persons, concerning the intimacies

of their physical relationship, even when not intended to produce

offspring, are a form of ‘liberty’ protected by the Due Process Clause

of the Fourteenth Amendment. Moreover, this protection extends to

intimate choices by unmarried as well as married persons.

Id. at 2483 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)) (emphasis

added) (internal quotation marks omitted). Because the private conduct at issue in

Lawrence also concerned the “intimacies” of a “physical relationship,” the Court

held that the petitioners have a right to engage in private sexual conduct without

government interference. Id. at 2484.

The Lawrence Court’s answer to its question of whether adults have a right

to engage in private sexual conduct – the question it granted certiorari to answer

and which it found was necessary to resolve the case – is binding precedent and

should control the outcome here. While the Lofton panel concedes that

“substantive due process does not permit a state to impose a criminal prohibition

on private consensual homosexual conduct,” Lofton, 358 F.3d at 815, it fails to

consider the ramifications of such a holding. Without defining what other kind of

right it could be, Lofton maintains that “it is a strained and ultimately incorrect

reading of Lawrence to interpret it to announce a new fundamental right.” Id. at

817. Indeed, Lawrence did not establish a new fundamental right. Rather, given

the Court’s statement that Bowers was not correct when it was decided, the

74

Lawrence Court reiterated the longstanding right of consenting adults to engage in

private sexual conduct.

B. Lofton’s Arguments for Why Lawrence is a Rational Basis Case are

Unsupported by any Supreme Court Precedents.

In addition to its insistence that Lawrence did not announce a “new” right to

sexual privacy, the panel offers four arguments for its skewed reading of Lawrence

as a pure rational-basis decision. First, it claims that Lawrence did not “locate this

right [to sexual privacy] directly in the Constitution.” Id. at 816. Second, it

argues that Lawrence failed to provide the “careful description” of the asserted

right required by Glucksberg. Id. (quoting Washington v. Glucksberg, 521 U.S.

702, 721 (1997)) (internal quotation marks omitted). Third, the panel claims that

Lawrence failed to identify a history and tradition of affirmative protection of the

right to engage in homosexual conduct. Id. at 816 n.15. Finally, the panel argues

that Lawrence could not have recognized a fundamental right or liberty interest

entitled to heightened scrutiny because of a single sentence in the opinion

indicating that the Texas sodomy statute furthered no legitimate state interest. Id.

at 817.

Regarding the panel’s first argument, as noted earlier, the Lawrence Court

stated that the petitioners’ “right to liberty under the Due Process Clause gives

75

them the full right to engage in their [private sexual] conduct without intervention

of the government.” 123 S. Ct. at 2484 (emphasis added). The Court could not

have been more clear that the petitioners’ right to engage in private sexual conduct

was located in the Due Process Clause. Thus, the panel’s argument that Lawrence

did not “locate this right directly in the Constitution” is meritless.

The panel’s second argument that Lawrence did not provide the “careful

description” of the right required by Glucksberg is also untenable given that the

Lawrence Court was at pains to describe how Bowers had misframed the question

in that case in terms of whether there was a fundamental right to engage in

consensual homosexual sodomy. As indicated above, Lawrence explained that the

narrow framing of the question in Bowers “demean[ed] the claim” set forth and

“disclose[d] the Court’s own failure to appreciate the extent of the liberty at stake”

in that case. Id. at 2478 (Bowers “misapprehended the claim of liberty there

presented to it”). The Lawrence Court explained that “[t]he laws involved in

Bowers and here are, to be sure, statutes that purport to do no more than prohibit a

particular sexual act. Their penalties and purposes, though, have more

far-reaching consequences, touching upon the most private human conduct, sexual

behavior, and in the most private of places, the home.” Id. (emphasis added).

Thus, Lawrence demonstrates that the “careful description” of a liberty interest

76

required by Glucksberg will not necessarily be synonymous with framing the

liberty interest in the most narrow fashion possible. The panel has ignored this

important clarification of the Glucksberg analysis required by the Court’s

subsequent decision in Lawrence. Inexplicably, given its purported interest in a

“careful description” of the asserted right, the panel also fails to recognize that

part of Lawrence in which the Court clearly states what the right at issue is and is

not about for purposes of guiding future courts:

The present case does not involve minors. It does not involve persons

who might be injured or coerced or who are situated in relationships

where consent might not easily be refused. It does not involve public

conduct or prostitution. It does not involve whether the government

must give formal recognition to any relationship that homosexual

persons seek to enter. The case does involve two adults who, with

full and mutual consent from each other, engaged in sexual practices

common to a homosexual lifestyle.

Id. at 2484.48

Third, the panel further ignores how Lawrence clarifies Glucksberg’s

treatment of the role of history and tradition in identifying a fundamental right or

liberty interest. The panel misreads Glucksberg to say that the only relevant

historical inquiry is whether there has been a tradition of laws affirmatively

48

Judge Birch makes inconsistent use of this passage. On the one hand, he uses it to argue that

Lawrence cannot possibly extend to the facts of the instant case – an argument that, for reasons

described in Part II.C below, is untenable. See Special Concurrence by Judge Birch to Denial of

Rehearing En Banc at *23. On the other hand, he overlooks this passage when it comes to arguing

that Lawrence did not provide a careful description of the scope of the right at issue. Id. at *18.

77

protecting the conduct at issue. Lofton, 358 F.3d at 816 n.15. The panel then

argues that while Lawrence “devote[d] considerable attention to history and

tradition,” it did so only to demonstrate that there had not been a “history of

enacting, and regularly enforcing, laws specifically directed at private homosexual

conduct.” Id. Apparently in the panel’s view, this was a superfluous inquiry,

devoid of legal meaning. According to the panel, the Supreme Court should have

asked “whether there has been a deeply rooted tradition and history of protecting

the right to homosexual sodomy or the right to private sexual intimacy.” Id.

The panel’s belief that a history of state non-interference in the private

sexual lives of homosexual adults cannot, as a matter of law, serve as the basis for

recognizing a right to sexual privacy is entirely unsupported by any Supreme

Court case. The panel has simply made up a new constitutional requirement that

there must be a history of affirmative legislative protection before a right can be

judicially protected under the Due Process Clause. Such a requirement ignores not

only Lawrence, but an entire body of Supreme Court jurisprudence. Had the

Supreme Court required affirmative governmental protection of an asserted liberty

interest, all of the Court’s privacy cases would have been decided differently.49

49

For instance, there was no lengthy tradition of protecting abortion and the use of

contraceptives, yet both were found to be protected by a right to privacy under the Due Processs

Clause. In Roe, the Court’s historical analysis of Anglo-American statutory and common law served

78

Equally significantly, the panel fails to heed the Lawrence Court’s instruction that

“[h]istory and tradition are the starting point but not in all cases the ending point

of the substantive due process inquiry.” 123 S. Ct. at 2480 (internal quotation

marks and citation omitted). As Lawrence stated:

[W]e think that our laws and traditions in the past half century are of

most relevance here. These references show an emerging awareness

that liberty gives substantial protection to adult persons in deciding

how to conduct their private lives in matters pertaining to sex.

Id. Thus, Lawrence elucidates the Glucksberg discussion of the proper use of

history and tradition in more than one sense. In addition to clarifying that history

and tradition do not themselves resolve the due process inquiry, Lawrence

establishes that recent trends and practices are as important as more distant ones in

defining the existence and scope of a liberty interest. The panel’s discussion of

history and tradition is outdated in both of these respects.

Fourth and finally, the panel insists that, no matter how hard Lawrence tries,

it cannot have involved a liberty interest that requires heightened scrutiny because

of a single reference to the phrase “legitimate state interest” towards the end of the

Lawrence opinion. Lofton, 358 F.3d at 817 (quoting Lawrence, 123 S. Ct. at

to provide evidence of the relatively recent (late nineteenth-century) vintage of state restrictions on

abortion, not to demonstrate a tradition of affirmative protection of the right to an abortion. 410 U.S.

at 132-41. Despite the lack of a history of protecting the right to abortion, the Roe Court

nevertheless held that the “right of privacy . . . is broad enough to encompass a woman’s decision

whether or not to terminate her pregnancy.” Id. at 153.

79

2484) (internal quotation marks omitted). The sentence in question stated that

“[t]he Texas statute furthers no legitimate state interest which can justify its

intrusion into the personal and private life of the individual.” Lawrence, 123 S.

Ct. at 2484. The panel misconstrues even this solitary fragment of the Lawrence

opinion. The mere presence of the phrase “legitimate state interest” does not mean

that heightened scrutiny is not applicable, as can be seen by its use in conjunction

with the application of heightened scrutiny. As the Supreme Court has explained,

“[w]here certain fundamental rights are involved, the Court has held that

regulation limiting these rights may be justified only by a compelling state interest,

and that legislative enactments must be narrowly drawn to express only the

legitimate state interests at stake.” Roe, 410 U.S. at 155 (emphasis added)

(internal citations and quotation marks omitted).50 Once the Lawrence Court

found that the Texas sodomy statute completely proscribed the petitioners’

substantive right under the Due Process Clause, and that the law lacked any

legitimate purpose, its inquiry was at an end. Heightened scrutiny requires a

compelling state interest. The Lawrence Court clearly found that there was not

50

As indicated by Justice Souter in Glucksberg, this heightened protection applies regardless of

whether the protected right is expressly labeled as “fundamental.” 521 U.S. at 768 n.10 (Souter, J.,

concurring) (“Our cases have used various terms to refer to fundamental liberty interests,” including

“basic liberty,” “constitutionally protected liberty interest,” and “right”) (internal citations and

quotation marks omitted); Casey, 505 U.S. at 848 (requiring heightened scrutiny of burdens on right

to abortion without labeling right as “fundamental”).

80

even a conceivable legitimate state interest that could have sustained the Texas

law.

The only way to avoid the conclusion that Lawrence recognized a

fundamental right or liberty interest that requires heightened scrutiny is to

deliberately refuse to give meaning to the overwhelming bulk of the words,

phrases, sentences, and paragraphs used in Lawrence. Under the panel’s view,

Lawrence is a one-sentence opinion with pages and pages of irrelevant dicta.51 I

submit that it is the panel in Lofton that constructs a “strained and ultimately

incorrect reading of Lawrence.”

C. Florida’s Adoption Ban is Subject to Heightened Scrutiny

Because It Significantly Burdens the Right Identified in

Lawrence.

Every precedent teaches that when the government directly burdens a

fundamental right or liberty interest of the nature affirmed in Lawrence,

heightened scrutiny applies. See, e.g., Roe, 410 U.S. at 155; Zablocki v. Redhail,

434 U.S. 374, 387-88 (1978) (heightened scrutiny applies to direct and substantial

burdens on due process right).52 This heightened scrutiny requires that legislation

51

See also Special Concurrence by Judge Birch to Denial of Rehearing En Banc at *19 (arguing

that the Lawrence Court “disposes of the case in a single sentence”).

52

See also McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (noting that when a “right

merits substantive due process protection” it is protected against government actions regardless of

the fairness of the procedures used).

81

be “narrowly drawn” to achieve a “compelling state interest.” Roe, 410 U.S. at

155.53

The panel argues essentially that, even if Lawrence affirmed a fundamental

right or liberty interest, heightened scrutiny is not appropriate here, first, because

adoption is a privilege and not a right under state law and, second, because

Florida’s ban is the product of a civil rather than a criminal law.54

With respect to the panel’s first argument, the Supreme Court long ago

rejected the rights/privileges distinction. See, e.g., Shapiro v. Thompson, 394 U.S.

618, 627 n.6, 638 (1969) (invalidating law that conditioned receipt of welfare

benefits, a statutory privilege, on one-year residency requirement as an

unconstitutional burden on right to interstate travel, and noting that “[t]his

constitutional challenge cannot be answered by the argument that public assistance

benefits are a ‘privilege’ and not a ‘right.’”), overruled in part on other grounds by

53

The only sexual privacy case where the Court did not use this language was Casey, where it

analyzed civil burdens on a woman’s right to abortion, not an outright criminal ban. The Court

found that a state regulation that had “the purpose or effect of placing a substantial obstacle in the

path of a woman seeking an abortion of a nonviable fetus” would place an “undue burden” on the

right to abortion and therefore be unconstitutional. Casey, 505 U.S. at 869.

54

Lofton, 358 F.3d at 809 (“Appellants’ challenge cannot be viewed apart from the context in

which it arises. Under Florida law, adoption is not a right; it is a statutory privilege. . . [A]doption

law is unlike criminal law, for example, where the paramount substantive concern is not intruding

on individuals’ liberty interests.”) (internal quotation marks and citation omitted).

82

Edelman v. Jordan, 415 U.S. 651 (1974).55 Therefore, contrary to the panel’s

suggestions, the refusal to extend a government benefit or privilege on non-

discriminatory terms may indeed unconstitutionally burden the exercise of a

fundamental right or liberty interest.

The panel’s second argument is also mistaken. See Lofton, 358 F.3d at 817

(distinguishing Lawrence because “[t]he relevant state action [here] is not criminal

prohibition, but grant of a statutory privilege”). The need to closely scrutinize

Florida’s justifications for burdening this right is not diminished because the

burden in this case is the product of a civil statute, rather than a criminal law.

Once a fundamental right or liberty interest has been established, the Supreme

Court has stated that heightened scrutiny applies not only when a state punishes its

55

See also Graham v. Richardson, 403 U.S. 365, 374 (1971) (“[T]his Court now has rejected the

concept that constitutional rights turn upon whether a governmental benefit is characterized as a

‘right’ or as a ‘privilege.’”); Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (“The constitutional

challenge cannot be answered by an argument that public assistance benefits are a ‘privilege’ and

not a ‘right.’”); Sherbert v. Verner, 374 U.S. 398, 404 (1963) (“[C]onstruction of the statute [cannot]

be saved from constitutional infirmity on the ground that unemployment compensation benefits are

not appellant’s ‘right’ but merely a ‘privilege.’ It is too late in the day to doubt that the liberties of

religion and expression may be infringed by the denial of or placing of conditions upon a benefit or

privilege.”); and Speiser v. Randall, 357 U.S. 513, 518 (1958) (“[A]ppellees are plainly mistaken

in their argument that, because a tax exemption is a ‘privilege’ or ‘bounty,’ its denial may not

infringe speech.”). See also Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972)

(“[T]he Court has fully and finally rejected the wooden distinction between ‘rights’ and ‘privileges’

that once seemed to govern the applicability of procedural due process rights.”); and Jones v. State

Bd. of Educ. for State of Tennessee, 397 U.S. 31, 34 (1970) (“[I]t is far too late to suggest that since

attendance at a state university is a ‘privilege,’ not a ‘right,’ there are no constitutional barriers to

summary withdrawal of the ‘privilege.”).

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exercise by means of a criminal statute, but also when a civil law directly and

substantially burdens that protected right.

For example, the Court in Zablocki applied heightened scrutiny in striking

down a civil law that prevented individuals who had not made child support

payments from receiving a marriage license. 434 U.S. at 388-91. The Court found

that the government was unable to show that the law was justified by “sufficiently

important state interests” or that it was “closely tailored to effectuate only those

interests.” Id. at 388. The Court explained that heightened scrutiny was

appropriate because the law had “directly and substantially” burdened the right of

poor people to marry. Id. at 387.

Similarly, in Shapiro, the Court struck down the civil laws of various

jurisdictions which required that residents live within the jurisdiction for a year

before receiving welfare benefits. 394 U.S. at 622-23, 642. Even though the laws

involved the receipt of a government benefit (welfare payments) rather than a

right, the Court expressly rejected the application of rational-basis review. Id. at

627 n.6 (noting that “[t]his constitutional challenge cannot be answered by the

argument that public assistance benefits are a ‘privilege’ and not a ‘right.’”)

(emphasis added). Instead, because the law “penalized” the fundamental right to

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interstate travel, the Court asked whether the law was “necessary” to achieve a

“compelling governmental interest.” Id. at 634.

Together, Zablocki and Shapiro stand for the proposition that a court must

analyze a civil law under heightened scrutiny when it either penalizes or severely

burdens the exercise of a fundamental right. I submit that if heightened scrutiny

was required given the nature of the civil burdens in Zablocki and Shapiro, then

such scrutiny must, a fortiori, apply in this case. After all, in Zablocki, a person

could marry after making his or her delinquent child support payment. And in

Shapiro, a resident would be eligible to receive welfare payments (a government

benefit like the ability to adopt) after living in the relevant jurisdiction for a year.

But a person exercising his or her Lawrence right in Florida may never adopt. The

categorical nature of this ban, which burdens the right to form intimate

relationships only when it is exercised by homosexuals, requires the same close

analysis that the Court gave to the laws analyzed in Zablocki and Shapiro and

warrants the very same result.56 None of the three cases newly cited by Judge

56

In Zablocki and Shapiro, the Court applied heightened scrutiny using an equal protection

analysis. This made sense given that the government had burdened the right of poor people to marry

(Zablocki), and had discriminated against new residents exercising their right to travel (Shapiro).

Likewise, Florida’s statute creates two classes of citizens: one of whom (heterosexuals) is allowed

to form intimate relationships without any penalties, while the other (homosexuals) must choose

between being considered as an adoptive parent and the ability to enter or remain in an intimate

relationship. Therefore, Zablocki and Shapiro demonstrate that Florida’s law can be analyzed using

heightened scrutiny under either the Equal Protection or Due Process clauses.

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Birch in his Special Concurrence in an attempt to fill the gaps in the panel opinion

rebuts this conclusion.57

In sum, given the Lawrence Court’s recognition of the fundamental nature

of the liberty interest of consenting adults to engage in homosexual relationships,

Florida’s statute must be subjected to heightened scrutiny. The statute in this case

imposes a direct, substantial and severe burden on the right recognized in

Lawrence. Florida’s adoption ban forces a choice between the right to participate

in a consensual, private, intimate relationship and consideration for parenthood

through adoption. In effect, under the Florida statute, homosexual men and

women must forgo the consideration given to all others to be adoptive parents in

order to engage in conduct protected by the Fourteenth Amendment. The

57

See Special Concurrence by Judge Birch to Denial of Rehearing En Banc at *30-31. These

three cases – Sell v. United States, 539 U.S. 166 (2003); City of Chicago v. Morales, 527 U.S. 41,

(1999); and Youngberg v. Romeo, 457 U.S. 307 (1982) – do not have any application to the issue

before us. In Morales, a municipality passed an ordinance that allowed police officers to order

individuals who were loitering on street corners to disperse if an officer reasonably believed that at

least one of the individuals was a gang member. The Court invalidated the statute on vagueness

grounds, finding that the ordinance “affords too much discretion to the police and too little notice

to citizens who wish to use the public streets.” Morales, 527 U.S. at 64. Thus, the Court never

reached the issue of whether the city had violated a liberty interest in loitering, and so had no

occasion to address the appropriate level of scrutiny for analyzing such a claim. The other two cases,

Youngberg and Sell, involved individuals already in government custody, with very different

implications for the liberty interests at stake. See Youngberg, 457 U.S. at 309 (involving a severely

mentally retarded adult in a state mental institution); Sell, 539 U.S. at 171 (involving a prisoner

opposed to forced anti-psychotic medication). Neither case says anything about the appropriate level

of scrutiny for claims raised by autonomous, free adults making decisions about private sexual

conduct.

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Constitution does not permit such a choice unless, under heightened scrutiny, a

compelling and narrowly tailored justification has been found. As demonstrated

above, not only is there no compelling interest to justify the Florida adoption ban,

but the law is not even rationally related to the governmental purposes asserted.

As such, Florida’s ban on homosexual adoption fails both heightened scrutiny and

rational basis review.

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MARCUS, Circuit Judge, Dissenting from the Denial of Rehearing En Banc in

which TJOFLAT and WILSON, Circuit Judges, join:

I believe there is a serious and substantial question whether Florida can

constitutionally declare all homosexuals ineligible to adopt while, at the same

time, allowing them to become permanent foster parents, and not categorically

barring any other groups such as convicted felons or drug addicts from adopting.

There is undeniably an important question whether this statutory scheme meets a

minimal standard of rational basis review. Accordingly, I dissent from the denial

of rehearing en banc.

88