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Legal Issues in the Lofton Case
The ACLU and Children First Project assert that the Florida state law banning lesbians and gay men from adopting children in need of stable, permanent, loving homes solely on the basis of their sexual orientation is unconstitutional. The Constitution of the United States provides all citizens with rights to equal protection, privacy, intimate association, and family integrity; the law being challenged denies both the adults and the children named in this lawsuit these constitutional rights.
Equal Protection
Florida's adoption policy violates the Fourteenth Amendment right to equal protection by singling the children in the lawsuit out for unequal treatment simply because they were not placed in homes headed by heterosexuals. Both children in this case are free for adoption; Lofton, Doe's foster parent, and Houghton, Roe's legal guardian, each wish to adopt the child entrusted by the state to their care. Both boys are being denied the benefits of a permanent home, and the only way Florida will allow them to obtain a permanent home is at the extraordinary cost of being removed from the family they love.
While denying the children in this case equal protection, the law also reduces the chances of finding permanent homes for all children available for adoption by disqualifying an entire class of potential qualified parents.
Florida's adoption policy denies Lofton, Houghton, Gilmore, Smith, and Skahen their right to equal protection as well. All of them are eligible to be considered as prospective adoptive parents except for the fact that they are not heterosexual, despite the number of studies showing that a parent's sexual orientation has no negative impact on the children he or she raises. The law is very clearly an example of unfounded discrimination against lesbians and gay men as a class.
Privacy, Intimate Association and Family Integrity
Florida's adoption law violates the rights to privacy, intimate association and family integrity for Doe, Lofton, Roe, and Houghton by prohibiting them from making their family relationships legally permanent. Doe has been in Lofton's care since infancy – Lofton is the only parent he has ever known. He lives with Lofton, Croteau, and his two foster siblings as a family. Roe and Houghton have been living together as a family for three years. By banning adoption in these cases, the future integrity of each family is uncertain and their intimate, personal relationships are unfairly burdened. The law's declaration that Lofton and Houghton are unqualified to adopt by definition is an "irrebuttable presumption." Such a presumption denies both men of their right to privacy, intimate association, and family integrity.
Substantive Due Process
Brenda and Gregory Bradley's right to control the care and custody of their child is protected by the Due Process Clause of the Fourteenth Amendment. As parents, they've decided that if they should die before their now two-year-old daughter is 18, they want Brenda's brother, Wayne Smith, to adopt and care for her. Smith has agreed. Under Florida's adoption policy, however, the Bradleys' wishes can not be honored, despite the fact that Florida does generally honor instructions in parents' wills regarding the care of their children, giving significant weight to adoption wishes specifically. If the discriminatory adoption policy did not exist, Smith could petition to adopt his niece in the event of her parents' death, and the Bradley's' wishes would be given preferential consideration by the court. Instead, because Smith is gay and automatically disqualified, any Florida court would be legally unable to consider his petition. By making it impossible for the Bradley's' testamentary wishes regarding their daughter's care to be honored, the law denies them their right to due process.
