Constitutional Law Class Notes 4/15/04


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Lofton v. Secretary of the Department of Children and Family Services


We’ll keep Lawrence fresh in the back of our minds.  But let’s get the facts of this case out on the table.  What’s going on?  What are the facts, and what is the constitutional question?  A Florida statute prohibited homosexuals from adopting children.  There were some gay couples who wanted to adopt, so they challenged the statute on constitutional grounds.  Were there any exceptions to the prohibition?  No.  It was an across-the-board prohibition.  Under no circumstances whatsoever could a gay person adopt.  We are told that the law only applies to people who are actually “practicing homosexuals”.  If you’re not celibate, and you’re gay, you’re not allowed to adopt.


What about the constitutional issues?  The statute is challenged under due process and equal protection.  It is claimed that the statute violated family integrity and that it also went against the holding of Lawrence.  There are two substantive due process issues.  What’s the difference between the two?  With the family intimacy issue, there is case law from the U.S. Supreme Court under substantive due process that protects certain kinds of family rights.  Some of the cases are very old!  The cases deal with interference into family liberty and autonomy.  Lofton as a foster parent had entered a relationship with the child.  He claims that this law interferes with that relationship.  If that’s the family substantive due process argument, what’s the other one?  They argued that Lawrence created a fundamental right to sexual intimacy.  If you must be celibate in order to adopt, that limits your sexual freedom.  What’s the equal protection claim?  They claim that the means don’t fit the ends.


One additional fact about the claim is that with respect to Lofton, the department of the Florida government that deals with adoption periodically reviewed him and said he was doing a great job.  The agency went beyond that too.  There was a finding by the social workers in the agency that it would have been in the best interest of the child to be adopted by Lofton.  There were factual findings in this case that he would be a good permanent parent for the child.  But the prohibition is categorical and doesn’t allow exceptions case-by-case.  The court says that it doesn’t matter that he is the best parent!


Is this decision consistent with the majority opinion in Lawrence?  Lawrence doesn’t control because it didn’t involve adoption.  It involved the criminal prohibition of sodomy.  The court says that Lawrence is irrelevant.  Lawrence may still be in play in some way.  It’s germane to the discussion even if it’s not the exact same factual pattern.  Is the Eleventh Circuit opinion consistent with the “spirit” or “mindset” of Lawrence?  Lawrence didn’t articulate a fundamental right.  Are the Eleventh Circuit judges doing their job here?  If Justice Kennedy had come to sit and decide this case, would he have written the same opinion with the same tone as the majority here?


The Eleventh Circuit is resistant to Lawrence in a way.  This isn’t what Kennedy would write.  Are the Eleventh Circuit judges doing their job properly?  Lower court judges will often disagree with Supreme Court decisions.  But is it proper for lower court judges to fight the precedent from on high simply because they don’t like it?


Isn’t there a doctrine that says if Congress acquiesces in a Supreme Court understanding of a statute, then that’s that?  The Florida legislature doesn’t have the last word on this as to whether their actions violate the Constitution.  The proper conclusion may be that no federal constitutional right has been violated.  But the legislature won’t have the last word.  The U.S. Supreme Court will have the last word.  Isn’t it the job of the lower court in the absence of the Supreme Court decision to try to anticipate it?   But we believe in precedent.  We don’t have a civil law system like in Germany or France.  Precedent has two functions: it is supposed to bind the court that issues precedents, and it is supposed to also bind lower court judges to follow it unless and until it’s overruled, whether they like it or not.  Lower court judges are not allowed to think of themselves as interpreting the Constitution directly; it’s not just them and the document.  They must ask: “What does the Constitution mean as interpreted by Supreme Court precedent?”


Would other Supreme Court justices from the majority have signed on to the Lofton opinion?  No way!  Breyer, Souter, Stevens, and Ginsburg would find this opinion to be an inaccurate statement of the law that they would not subscribe to.  O’Connor probably wouldn’t sign on to it either.  Does that mean that the Court will grant cert here?  Not necessarily.  The Court doesn’t feel that they have to be principled as far as granting certiorari.  It may be debatable whether Lawrence is principled in that respect.  The Court feels free to be very strategic about granting and denying certiorari.  Congress has granted them very wide powers to look at or not look at cases.  If the Court is just “not ready”, they don’t have to look at a case.  Foley thinks that it’s unlikely that this case will be granted cert because he thinks the Court will let Lawrence sit out there for a while.  But he thinks that the people who wrote Lawrence, if they did grant cert, would not sign on to the Eleventh Circuit opinion.  Scalia, Rehnquist and Thomas would have no problem signing on to it.


Last year the Supreme Court got so mad at the Ninth Circuit that they summarily reversed three Ninth Circuit opinions on death penalty cases.  The judges in the Ninth Circuit openly acknowledge that they won’t follow Supreme Court decisions that they disagree with because they don’t agree with their conscience.  So Foley says that the Eleventh Circuit self-consciously knows that they are difference from the Lawrence majority.


When the U.S. Supreme Court issued the initial school prayer cases and said that prayer in public school was a violation of the Establishment Clause of the First Amendment as incorporated into the Fourteenth Amendment, there were federal judges who said they wouldn’t follow the precedent.  What if you think the U.S. Supreme Court really got it wrong?  What do you do?


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