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Homosexuals and Adoption: Equal Protection


Erik L. Smith


Lofton v. Secretary of the Dept. of Children & Family Services No. 01-16723 (11th Cir. 01/28/2004) (Casemaker cite—federal library)



Florida law prohibited adoption by any "homosexual" person. 1977 Fla. Laws, ch. 77-140, § 1, Fla. Stat. § 63.042(3) (2002). "Homosexual" meant applicants "known to engage in current, voluntary homosexual activity," thus distinguishing "between homosexual orientation and homosexual activity." Florida law let unmarried people adopt, many of whom had adopted out of foster care.


Homosexual foster parents challenged the statute on equal protection grounds, arguing that homosexuals were similarly situated to unmarried persons regarding Florida's interest in promoting married-couple adoption.1 Neither party disputed that any fundamental right to adopt—or to be adopted—existed. Neither party disputed that Florida's preference for marital adoptive families was a legitimate state interest. No court has found homosexuals to be a suspect class. Thus the rational-basis test applied.


Background Law

The equal protection guarantee mandates that "[t]he sovereign may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective." Citing Lehr v. Robertson, 463 U.S. 248, 265, (1983).


Unless the challenged classification burdens a fundamental right or targets a suspect class, the Equal Protection Clause requires only that the classification be rationally related to a legitimate state interest. Citing Romer v. Evans, 517 U.S. 620, 631 (1996).



"Could the Florida legislature have reasonably believed that prohibiting adoption into homosexual environments would further its interest in placing adoptive children in homes that will provide them with optimal developmental conditions."


1 This brief omitted Loften's due process challenge, which failed mainly because Loften could not establish threats to already existing "family integrity" or "private sexual intimacy."

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Copyright © Erik L. Smith.