Federal appeals court split lays bare conflict over scope of Lawrence sodomy victory
By the narrowest possible margin, the twelve active judges of the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, have voted against reconsidering a three-judge panel’s January 28 decision rejecting a constitutional equal protection challenge to a Florida statute that makes “practicing homosexuals” ineligible to adopt children in that state.
The court split 6-6 on whether to grant rehearing, so the necessary majority was not achieved. The vote was announced on July 21.
Three of the six judges who voted to re-hear the case argued that the statute was unconstitutional, while the other three argued that the constitutional questions were serious enough to require consideration by the entire circuit court.
In lengthy dueling opinions, two members of the court, Stanley F. Birch, Jr., who was appointed to the court by Pres. George H.W. Bush in 1990 and who wrote the unanimous three-judge panel opinion in Lofton v. Secretary of the Department of Children and Family Services, and Rosemary Barkett, a former Florida Supreme Court Justice who was appointed to the appeals court by Pres. Bill Clinton in 1994, conducted a heated debate about the meaning of the Supreme Court’s 2003 decision in Lawrence v. Texas, the ruling invalidating laws against sodomy, and its implications for the validity of Florida’s adoption law. Birch defended his opinion for the three-judge panel, while Barkett tore it to shreds.
Of the four active judges appointed to the 11th Circuit by Bill Clinton, three voted in favor of granting re-hearing in this case. Of the four active judges appointed to the court by George H. W. Bush, three voted against granting rehearing. Jimmy Carter’s only active serving appointee voted to re-hear the case, as did Gerald Ford’s only active serving appointee. The only serving appointees of Ronald Reagan and George W. Bush voted against rehearing.
Florida’s adoption ban was instituted in 1977 in the wake of the referendum campaign, led by Anita Bryant, to repeal a gay rights ordinance in Miami. In her opinion, Barkett provides detailed historical evidence that the Legislature’s action was a response to public anti-gay agitation and did not reflect sober consideration of the best interests of children needing adoptive homes. The three-judge panel upheld the trial judge’s refusal to consider this evidence, on the ground that the actual motivation of the Legislature was irrelevant.
Strange as it may seem, this is a reasonably accurate reading of Supreme Court precedents on the question of whether discriminatory statutes are unconstitutional. Arguing that it is impossible to know the true motivation of every legislator involved in voting on a statute, the courts instead ask whether there is any legitimate, non-discriminatory purpose for a statute. If there is not, and the statute is on its face discriminatory, then the court will infer a discriminatory motivation and strike the statute down as a violation of the 14th Amendment.
Birch argued that under the Supreme Court’s decisions in both Romer v. Evans (1996)—which struck down a voter initiative that had banned anti-gay nondiscrimination legislation in Colorado—and Lawrence v. Texas, statutes that discriminate against gay people are presumed to be constitutional and may be upheld if they have any rational non-discriminatory justification. Florida argued that it could rationally prefer to limit adoption to heterosexuals, because it viewed the traditional heterosexual, two-parent household as the optimal environment for child rearing. Birch argued that this was a rational, non-discriminatory reason for the restriction, while stating, at the end of his decision, that were he a legislator, he would have voted against the restriction. Since Birch found the state’s argument rational, he refused to infer a discriminatory motivation for the statute.
Birch pointed out that the roles of judges and legislators are different; judges are not supposed to strike down statutes on policy grounds, but only if a state’s legislature went beyond the scope of its constitutional authority by arbitrarily discriminating.
In the course of his July 21 opinion, as in the earlier three-judge panel decision, Birch took a very minimalist view of the effect of Lawrence v. Texas, arguing that beneath all the verbiage, the Lawrence decision had simply and narrowly ruled that there was no legitimate, rational justification for the Texas making it a crime for consenting adults of the same sex to have sexual relations in private. He rejected the more expansive view taken by many commentators, who hailed Lawrence for recognizing a fundamental right for gay people to form intimate relationships. Birch also dismissed the argument that Florida had unconstitutionally burdened this right by disqualifying “practicing homosexuals” from adopting children.
In original January opinion, Birch wrote that Lawrence was largely irrelevant to this case, since it involved a criminal statute and the imposition of criminal penalties and possible loss of liberty, while the adoption statute involves a privilege, not a right.
By contrast, Barkett embraced the broader view of Lawrence, but only after showing, in the first part of her opinion, how the Florida statute flunks even the most lenient, undemanding scope of judicial review espoused by Birch. She showed that the Supreme Court has found the lack of a rational basis for discriminatory rules in cases where the purported justification did not make sense as a practical matter, and applied that insight to the striking absurdities of Florida adoption practices.
For example, Florida has a list of thousands of children awaiting adoption, far out-numbering the number of qualified heterosexual adult applicants to adopt children, so disqualifying all gays means that most of the children on the list will be relegated to the less stable situation of foster care. Florida’s record on foster care shows much less stability in placements than the national norm. This directly contradicts one of the reasons Florida advanced for preferring married heterosexual families—the presumption that they provide a more stable environment.
In addition, Barkett pointed out, Florida allows single heterosexuals to adopt children, further undermining the two-parent family stability argument. Indeed, the parties in this case had stipulated that 40 percent of the adoptions in the Miami area were by single adults. The three-judge panel had accepted the rather absurd argument that this was not contradictory because it was possible that a single adoptive straight parent would marry in the future. Barkett sharply pointed out the lack of any data to support it. She also quoted divorce figures, showing that calling married adoptive parents exemplars of “stability” was erroneous. Indeed, Florida’s divorce rate, nearly 50 percent, exceeds the national average.
The other argument Florida had advanced was that children need both a father and a mother to ensure that they have adult role models from each sex in order for them to develop an appropriate understanding of sex roles. Barkett exploded this argument as well, exposing it as a thinly veiled attack on the dignity of gay people—an attack expressly ruled out by the Lawrence opinion—by incorporating some sort of presumption that the state has a legitimate interest in dictating the eventual sexuality of its citizens.
A critical issue for the long-term outlook for gay rights in the courts is the underlying debate between Birch and Barkett, a debate inherent in many other decisions over the past year but rarely expressed quite so openly, about the meaning of the Lawrence opinion. It is possible to view Lawrence as a charter of equal citizenship for gay people, placing in question the constitutionality of any government policy that treats gay people in a disrespectful or exclusionary way. Such an interpretation flows naturally from some of the high-flown rhetoric of Justice Anthony M. Kennedy’s opinion for the Court.
But it is also possible to see much of that rhetoric as what lawyers call “dicta,” interesting comments that are nonetheless not really part of the “holding” of the decision, and to focus narrowly on the Court’s specific statement, toward the end of its opinion, that the Texas Homosexual Conduct Law was unconstitutional because the court could not find any rational basis for Texas to make the private consensual sex acts of adults a crime. This statement implied that only the least demanding level of judicial review under which completely irrational statutes are struck down is the appropriate level of review for gay rights cases.
Barkett embraced the broader view. Where Birch saw “dicta” of no precedential consequence in the Lawrence decision, Barkett saw important statements of constitutional principal intrinsic to the Supreme Court’s reasoning in declaring that the 1986 Georgia sodomy case, Bowers v. Hardwick, had been wrongly decided and should be overruled. Where Birch saw a narrow ruling that the particular Texas sodomy law lacked even a minimally adequate justification, Barkett saw a broadly-stated liberty interest in intimate association that could not be permissibly burdened by the state, even in the context of a non-criminal regulation, without a much more logically supportable justification than was tossed out by Florida in this case.
The debate is crucially important for future disputes about same-sex marriage, gay parents, military service and a host of other government policies currently structured in ways that treat gay Americans as second-class citizens. The next step for this case could be a petition to the U.S. Supreme Court to bring the debate to the next level. The persistence of conservative lower court judges in minimizing the effect of Lawrence, seen in adverse marriage rulings from Arizona and New Jersey and the embarrassing decision by the Kansas Court of Appeals in the case of Mathew Limon, a teenager imprisoned for having oral sex with another male, show the importance of bringing another case to the Supreme Court, sooner rather than later.