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Lofton v. Secretary of the Florida Department of Children and Families

Lofton v. Secretary of the Florida Department of Children and Families

Legal decision

By: Judges of the United States Court of Appeals for the Eleventh Circuit

Date: July 21, 2004

Source: Lofton v. Secretary of the Florida Department of Children and Families. In the United States Court of Appeals for the Eleventh Circuit. No. 01-16723, D. C. Docket No. 99-10058-CV-JLK, On Petition for Rehearing En Banc. Available at: 〈http://www.〉 (accessed March 8, 2006).

About the Author: The twelve justices of the Eleventh Circuit of the U.S. Court of Appeals issued this opinion denying a rehearing of a decision by a three-judge panel of federal appellate court judges in the case Lofton v. Secretary of the Florida Department of Children and Families.


In 1977, Florida enacted a law (Ch. 77-140, §1, 1977 Fla. Laws, 466) that explicitly banned the adoption of children by homosexual couples: "[n]o person [otherwise] eligible to adopt under this statute may adopt if that person is a homosexual." The same day, a bill was signed into law restricting marriage to heterosexual couples (Ch. 77-139, §1, 1977 Fla. Laws, 465). Florida's gay adoption ban has been repeatedly challenged in court, but never successfully. The most recent challenge, and the first to seek relief under the United States rather than the Florida Constitution, was a suit brought by Florida pediatric nurse Steven Lofton and several other plaintiffs against the Secretary of the Florida Department of Children and Family Services (Kathleen Kearney) and the District Administrator of District Eleven of Florida's Department of Children and Families (Charles Auslander). The case is sometimes referred to simply as Lofton v. Kearney.

Steven Lofton became the foster parent of a male baby ("John Doe" in the court records) in 1991. In September 1994, Lofton filed an adoption application, but refused to answer question G, "Are you a homosexual?" This began years of legal wrangling between Lofton and the Florida Department of Children and Family Services. In 1999, the American Civil Liberties Union (ACLU) brought suit against Kearney and Auslander (in their official capacity only) on behalf of Lofton and three other gay men, all of whom had been denied petitions for adoption in Florida because of their homosexuality. This suit, Lofton v. Kearney, filed in a Federal Court in Miami, claimed that the Florida law violated the U.S. Constitution.

The court decided against Lofton and his fellow plaintiffs in 2001. The ACLU appealed to the United States Court of Appeals for the Eleventh Circuit. On Jan. 28, 2004, a panel of three judges from the court upheld the lower court's ruling. The plaintiffs then petitioned for an en banc rehearing of their case by the circuit court, that is, a hearing by all twelve of the circuit's judges at once. (En banc is French for "by the full court.") On July 21, 2004, in a six to six vote, the circuit judges denied the petition for rehearing (a majority would have been necessary to mandate a re-hearing). The excerpts reproduced here are from the July 21, 2004, document in which the court denies the requested rehearing en banc. The ACLU then asked the U.S. Supreme Court to hear a further appeal in the case, but in January, 2005, the Court declined to hear the case.


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

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.

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.

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." Florida is the only state in the union to have such a categorical statutory prohibition targeted solely against homosexuals. 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.


Florida and Mississippi are the only U.S. states to explicitly forbid adoption by homosexual couples. The informal motivation for the law was expressed in 1977 by its sponsor, Florida state senator Curtis Peterson: "The problem in Florida has been that homosexuals are surfacing to such an extent that they're beginning to aggravate the ordinary folks. We're trying to send them a message, telling them: 'We're really tired of you. We wish you'd go back into the closet.'"

Formally, however, the state argued that its primary concern was the welfare of the children in its custody. Specifically, it contended that it wished children to be adopted into "mainstream American culture." The state's defense further argued that "the adoption law is rationally related to the best interests of children in being raised in homes with married mothers and fathers due to the stability provided by marriage and the contribution of male and female influences to childhood growth and development, including heterosexual role modeling and sexual and gender identity" (quotation from the denial of petition for rehearing en banc). While not all judges on the Eleventh Circuit agreed with the state's offered rationale—as the excerpt from the majority opinion by Judge Stanley Birch shown above makes clear—the majority reasoned that if a law passed by the Florida legislature could "arguably" have a rational basis, and if the law is not clearly unconstitutional, then the court is obliged to not overturn that law.

The opposition to homosexual adoption primarily comes from religiously conservative segments of society such as evangelical Christians and conservative Catholics. These groups tend to believe that homosexuality is sinful or pathological. The Vatican, for example, has recently described adoptions by gay couples as "gravely immoral." In 2006, the four Catholic bishops of Massachusetts petitioned the governor of that state to exempt Catholic social-service agencies from state anti-discrimination policies so that these church-based agencies could deny adoption to gay couples. (The state licenses the agencies to place children with adoptive parents.) As of mid-March 2006, the governor had not yet made a decision on the matter.

Alabama, Mississippi, North Carolina, and Virginia all deny child custody based on sexual orientation; Florida denies adoption by homosexuals but allows foster care and custody. The general legal trend has been toward recognition of gay adoption. Nine U.S. states and the District of Columbia have explicitly legalized adoption by openly gay and lesbian couples. Most U.S. states neither forbid gay adoption nor explicitly establish a right to it. Gay adoption is legal in Belgium, England, the Netherlands, Spain, Sweden, most of Canada, and part of Australia; approximately equivalent arrangements are legal in a number of other countries. Medical and psychiatric opinion has recently tended to favor gay adoption. The American Academy of Pediatrics stated in 2002 that "chil-dren with parents who are homosexual have the same advantages and the same expectations for health, adjustment, and development as children whose parents are heterosexual." The American Psychiatric Association stated in 2002 that it "supports initiatives which allow same-sex couples to adopt and co-parent children." In 2004, an Arkansas court struck down a state regulation barring gay persons and persons sharing households with gay persons from being foster parents. Lofton v. Kearney is significant, in part, because it runs counter to this trend.


Web sites

American Psychiatric Association. "News Release: New Position Statement Adopted by the American Psychiatric Association (APA): Adoption and Co-parenting of Children by Same-Sex Couples, December 13, 2002." 〈〉 (accessed March 8, 2006).

American Academy of Pediatrics. "News Release: AAP Says Children of Same-Sex Couples Deserve Two Legally Recognized Parents, February 4, 2002." 〈〉 (accessed March 8, 2006).

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