Law Class Notes 4/15/04
will soon get an e-mail about our last classes.
Lofton v. Secretary
of the Department of Children and Family Services
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.
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.
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!
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?
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
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
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.
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.
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?
Back to Class Notes