GAY AND LESBIAN RIGHTS

Eleventh Circuit Upholds Florida's Denial of Right to Adopt

In early 2005, the U.S. SUPREME COURT declined review of an Eleventh Circuit Court of Appeals decision upholding Florida's statutory ban on adoption of children by homosexuals. The case at issue was Lofton v. Secretary of the Florida Department of Children and Families, 358 F.3d 804 (11th Cir. 2004). (The Atlanta-based Eleventh Circuit Court also denied a petition for an en banc rehearing of its initial 2-1 panel decision issued in January 2004.)

Florida's law, dating from 1977, was unique in the United States. (Mississippi prohibited homosexual couples, but not individuals, from adopting. Utah prohibited unmarried, cohabiting individuals [homosexual or heterosexual] from adopting. Six states expressly permitted adoptions by homosexuals: California, Connecticut, Massachusetts, New York, Pennsylvania, and Vermont.) The Florida law was challenged by lead plaintiff ACLU, representing four homosexual foster parents (Florida law does permit homosexuals to be foster parents) who wanted to adopt.

Under equal protection and due process challenges, the plaintiffs filed suit in U.S. District Court for the Southern District of Florida, naming the Florida Department of Children and Family Services, its district administrator, and the state attorney general as defendants. They argued that Florida Statute 62.042(3) violated their fundamental rights to familial privacy, intimate association, and family integrity under the Due Process Clause of the FOURTEENTH AMENDMENT. They also argued that the statute, by categorically prohibiting only homosexual persons from adopting, violated the Equal Protection Clause of the Fourteenth Amendment. Finally, they requested class certification of similarly situated plaintiffs. The district court denied the request for class certification and summarily dismissed all counts, thereby upholding the statute.

Plaintiffs appealed that decision to the Eleventh Circuit, but added another argument. Although their original petition was filed prior to the U.S. Supreme Court decision in, Lawrence v. Texas, 123 S. Ct. 2472 (2003), they now argued that in Lawrence, the Supreme Court recognized a fundamental right to private sexual intimacy, and that by disallowing individuals who engaged in homosexual activity from adopting, Florida's statute impermissibly burdened that right. Each of these challenges were issues of first impression in the Eleventh circuit.

The appellate court rejected all arguments. First noting that the challenges could not be viewed apart from the context in which they arose, the court noted that, under Florida law, "adoption is not a right; it is a privilege." Unlike biological parentage, which preceded and transcended formal recognition by the state, adoption is wholly a creature of the state. Because of its statutory origin, adoption differs substantially from natural procreation, noted the court.

One important effect of that distinction is the shift in focus—from the rights of individuals,—where the paramount substantive concern is intrusion on their liberties (as was the case in Lawrence, to the rights and needs of children who have become wards of the state. Adoption is also distinct from such contexts as government benefit eligibility or access to a public forum,—where equality of treatment is the primary concern.

Rather, within the adoption context, the state's overriding concern is the best interests of the child whom it is seeking to place in an adoptive family. Because the state's primary interest is the welfare of the child, it can permissibly make classifications for adoption purposes that might otherwise be constitutionally suspect in other arenas.

The decision to adopt a child is not a private decision, but rather, a public act. Prospective adoptive parents petition the state to confer official recognition and status upon them as parents. They are requesting that they be granted the highest level of constitutional insulation from subsequent state interference, and the state has every right to consider many factors in that determination. The appellate court concluded that the Lawrence decision did not refute "the accumulated wisdom of several millennia of human experience" that the optimal family structure in which to raise children was one with a mother and father married to each other.

The plaintiffs also had argued that there was no rational basis for categorically denying all gays the right to adopt, at a time when the state lacked homes for some 8,000 children. One of the lead plaintiffs in the case was a male homosexual who had taken in eight children with HIV or AIDS and won an award as the outstanding foster parent of the year from the placement agency. But the state replied in its

brief that "Petitioners never showed that the gay adoption provision has ever limited the number of adoptions in any statistically significant way."

By denying certiorari review, the U.S. Supreme Court's action set no precedent and left open the possibility that, as the Lawrence decision plays out under different factual contexts, circuits will have time to distinguish and differentiate it, as needed, before the high court revisits the issue.

Kansas v. Limon

In June 2005, the Kansas Supreme Court recessed for the term without issuing its opinion in a contentious case, despite having heard oral arguments in September 2004. The case, Kansas v. Limon, No. 85898, already had a merry-go-round appellate history as it was, including a prior remand from the U.S. SUPREME COURT in 2003. At issue was the alleged disparate treatment (i.e., harsher penalties) of criminals who commit homosexual offenses involving children, and those offenders committing heterosexual acts involving children.

In February 2000, 18-year-old Matthew R. Limon performed an act of oral sex on a 14-year-old boy, whom court records referred to only as "M.A.R." Both Limon and M.A.R. lived at a group home for the developmentally disabled near Paola, Kansas. In court testimony, M.A.R. was described as "mildly mentally retarded," and Limon as functioning at a slightly higher level, but not as an 18-year-old.

This was Limon's third conviction for similar offenses. He was convicted of criminal sodomy (although court records stated that the encounter was consensual) because Kansas law, like that of many other states, prohibits sex with any persons under 16 years old, whether consensual or not. Limon was sentenced to 206 months (more than 17 years) in prison for his crime, a level-3 felony in violation of K.S.A. 21-3505(a)(2). The issue was not the severity of the sentence, but, rather, the reasoning behind it.

Limon's attorneys argued that—had he engaged in consensual sex with a 14-year-old girl instead of a 14-year-old boy, he would have been convicted under Kansas' "Romeo and Juliet" law, K.S.A. 2002 Supp.21-3522, a level-9 felony that carries a maximum sentence of 15 months. This, they argued, violated the Equal Protection Clause of the FOURTEENTH AMENDMENT by discriminating on the basis of sexual orientation.

At issue on appeal to the state was the latter "Romeo and Juliet" statute, which provides, in relevant part: "(a)Unlawful voluntary sexual relations is engaging in voluntary… (2)sodomy…with a child who is 14 years of age but less than 16 years of age and the offender is less than 19 years of age and less than four years of age older than the child and child and the offender are the only parties involved and are members of the opposite sex." (Emphasis added.)

Conversely, the statute under which Limon was convicted, K.S.A. 21-3505(a)(2), states: "Criminal sodomy is…sodomy with a child who is 14 or more years of age but less than 16 years of age." The statute is gender neutral.

Limon appealed his conviction, arguing that Kansas's "Romeo and Juliet" law, Kan. Stat. Ann. §21-3522 (Supp. 2002), was unconstitutional, as it impermissibly discriminated between heterosexual and homosexual sodomy. The state court of appeals, in an unpublished opinion (Limon I, filed February 1, 2002), affirmed Limon's conviction, relying primarily on the U.S. Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). The Kansas Supreme Court denied review.

On appeal to the U.S. Supreme Court, Limon's case was deferred until the high court issued its opinion in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L. Ed.2d 508 (2003). In light of its ultimate decision in Lawrence, which overturned Bowers and struck down all same-sex sodomy laws, the Supreme Court remanded Limon I to the Court of Appeals of Kansas.

In January 2004, the Kansas Court of Appeals issued its second opinion (No. 85898), reaffirming Limon's sentence. The 2-1 decision found Lawrence v. Texas to be factually and legally distinguishable. The Kansas appellate court characterized the Lawrence decision as holding that no state may prohibit adults from engaging in private consensual sexual practices that are common to a homosexual lifestyle. However, the appellate court expressly quoted language from Justice ANTHONY KENNEDY, writing for the Supreme Court in the Lawrence case, who stated: 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… (quoting from Lawrence, 156. L.Ed.2d at 525) Because Limon's case involved a 14-year-old developmentally disabled child, the Kansas appellate court found it to be factually distinguishable from Lawrence.

Moreover, said the court of appeals, Kan. Stat. Ann. §21-3522 (Supp. 2002) (the "Romeo and Juliet" law) did not violate the Equal Protection Clause or the Due Process Clause because a rational basis existed for limiting its application to "members of the opposite sex." The appellate panel suggested that legislators might have considered more severe sanctions for homosexual sex with a minor in an effort to reduce sexually transmitted disease, or to encourage "traditional sexual mores" and the promotion of procreation and marriage, or to protect children who are still unsure of their sexual identities. (The legislative record contained no details on the factors considered.)

In any event, arguments before the Kansas Supreme Court included amicus briefs from the National Association of Social Workers condoning homosexuality as "a normal expression of sexuality," and the American Psychiatric Association, which argued that homosexuality is not a conscious choice that could or should be altered by therapy. According to the ACLU, five other states have similar "Romeo and Juliet" laws: Alabama, California, Georgia, Texas, and Virginia.