Homosexuals and Adoption: Equal Protection

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Published Date Written by 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)

 

Facts

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).

 

Issue

"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."

 

 

 

 

Holding/Reasoning

Yes.

  1. Florida need not show that homosexuals pose a greater threat than other unmarried adults who are allowed to adopt. Rather, the question was one of rationality.
  2. "It is not irrational to think that heterosexual singles have a markedly greater probability of eventually establishing a married household and, thus, providing their adopted children with a stable, dual-gender parenting environment."
  3. It was rational to believe that heterosexual singles are better positioned than homosexual individuals to educate and guide their adopted children regarding their sexual development. Because most adopted children will develop heterosexual preferences, those children will need education and guidance after puberty about relating to the opposite sex. It therefore serves the child's best interests to have parents who can personally relate to the child's problems and assist the child in transitioning to heterosexual adulthood. [2]
  4. Because adopted children often have developmental problems arising from adoption, having a stable heterosexual household during and after puberty might be more important for adopted children than for other children.
  5. Whether the Florida legislature was misguided was a question of legislative policy, not constitutional law. "The legislature is the proper forum for this debate."

 

Comments

The Florida statute violates equal protection. The court reasoned:

 

"It is not irrational to think that heterosexual singles have a markedly greater probability of eventually establishing a married household and, thus, providing their adopted children with a stable, dual-gender parenting environment."

 

But single persons are either fit to adopt when they adopt, or they are not. The state cannot let single parents adopt without assuming they will stay fit if they stay single Under that assumption, single parents are not furthering the state's goal of providing a "stable, dual-gender parenting environment."

 

The court next reasoned that it was rational to believe that heterosexual singles were better positioned than homosexual individuals to educate and guide their adopted children regarding their sexual development. "Because most adopted children will develop heterosexual preferences, those children will need education and guidance about relating to the opposite sex. It therefore serves the child's best interests to have parents who can personally relate to the child's problems and assist the child in transitioning to heterosexual adulthood."

 

That assumes that homosexual and heterosexual relationships differ fundamentally. The difference cannot be gender-based because the legislature assumes a heterosexual parent can counsel either a son or a daughter about heterosexual relationships. In turn, the legislature assumes that homosexuals cannot relate to heterosexual children regardless of their sex. Thus, the legislature assumes some difference in the psychological make-up of homosexual relationships beyond mere sexual preference.

 

But there is no evidence of it. The belief that a difference exists is therefore not rational, but prejudicial. The state must show some evidence of a fundamental difference between homosexuals and heterosexuals in their psychology--beyond the existence of the relationship itself--before it can assume that single homosexuals are less stable than single heterosexuals, or even that there is such a thing as a "homosexual environment."

 

For those reasons, I believe the Florida statute violates equal protection.

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." 
2.
Petition for Rehearing En Banc was denied in July 2004. Petition for certiorari to the U.S. Supreme Court was denied in January 2005. 

The Ohio Putative Father Registry–the WHAT?

I am a single man. Yet I had been in Ohio for over a year before hearing of the Ohio Putative Father Registry, and then only in a Probate Law class. The professor was covering how a child could be adopted without the birth father's consent. "ORC 3701.061: A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section 3107 of the Revised Code." That section required the man sign the Putative Father Registry within thirty days after the birth to get notice of the adoption.

 

Ohio Putative Father Registry: The Basics

Unwed fathers are entitled to notice of petitions to adopt their biological children. Yet many fathers lose this right by not registering timely with the Ohio putative father registry (PFR).1R.C. 3107.062. Because adoptions are probate proceedings, lawyers practicing juvenile, domestic relations, or traditional probate law may not understand how the Ohio PFR applies.  At initial consultations then, attorneys may omit counseling fathers about the registry and refer them to attorneys with more specialized experience. But the strict registration deadline, and often unknown deadline date, demand that the father register immediately. Thus the attorney should consider counseling the client about the PFR and help him register that day before referring him. This article gives the information needed to do that.

Preventing Your Infant Child From Being Adopted Without Your Consent

Summary

Consult an adoption law or family law attorney. Otherwise: An unwed father has no absolute right to veto an adoption. You must take action to preserve your rights. Whether the mother is considering adoption or not, an unwed father should, as soon as possible and preferably before the birth:

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