Lofton case

[David Cruz]

No, Brian.  The author was Birch, joined by Carnes and Procter Hug (by
designation).  Here's basically what I noted about the decision on the
queerlaw listserv (this email is based on an earlier private message).  I
ignored some of the more obvious or bigger points that people had already
raised in that discussion.

-David

---------- Forwarded message ----------

I would call Lofton a train wreck were it not so deliberately awful in so
many ways.  Besides those noted by Tobias and Sam, consider:

* the very framing of the opinion as involving resolution of "the states'
rights issue of whether [Florida's adoption ban] is constitutional as
enacted by the Florida legislature and as subsequently enforced"  --
states' rights?!?

* the insistence, after defining enforcement as part of the issue, that
it's irrelevant if there's "disparity between a law and its enforcement."

* the subtly snide dismissiveness of the media attention to Lofton's
"story," with the judges falsely insisting that they "confine our
discussion of that story to those facts relevant to the legal issues
before us" and then turning around to tell us that failed litigant and law
professor Bill Adams "wrote to the [ACLU] and informed it that Lofton and
Croteau would make 'excellent test plaintiffs'" -- a fact never again
adverted to and whose legal significance remains unexplained.

* its thinly veiled hostility toward the Lawrence opinion for relying on
certain "constitutional liberty interests ... invoked[] not with 'careful
description,' but with sweeping generality.'"

* its outrageous rejection of the plaintiffs' argument for heightened
equal protection scrutiny WITHOUT ANY ANALYSIS, instead simply noting that
"all of our sister circuits that have considered the question have
declined to treat homosexuals as a suspect class" (string cite footnote)
before declaring conclusorily that "the present case involves neither a
fundamental right nor a suspect class" -- and its utter failure to even
indicate awareness of Justice O'Connor's equal protection arguments in her
Lawrence concurrence.

* its gratuitous "not[ing]" in a footnote of the legitimacy of public
morality as a state interest after saying it needn't resolve the issue --
and relying on the 12+-year-old decision in Barnes and utterly failing to
note that Lawrence, which after all it reads as only a rational basis
review decision (per Scalia), rejected Texas's morality argument.

* its assertion that plaintiffs stipulated that substance abusers are
never permitted to adopt in Florida when the quotation used to support the
claim clearly is not so categorical.

* its reliance on an article co-authored by Paul Cameron.

* its smarmy "not[ing]" of "Justice Cordy's extensive, and persuasive,
discussion of the currently available body of research on the question
of homosexual parenting [sic]."

* its outrageous use of the state's supposed possible interest in keeping
adopted kids away from homosexuals, because they are less likely to marry
than heterosexuals, when the statute as judicially interpreted ONLY
DISQUALIFIES "PRACTICING" HOMOSEXUALS -- as the court itself emphasizes
when distinguishing Romer as involving a law disadvantaging people on the
basis of conduct or status, whereas "Florida's adoption prohibition is
limited to conduct."


ARRGH.  I wonder whether there's any realistic chance of favorable en banc
review.


David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.


On Thu, 29 Jan 2004, Bryan Wildenthal wrote:

> Surprised?  Not at all, considering the rightwing extremists among many
> of the Reagan, Bush Sr, and Bush Jr appointees in that and other
> circuits.  I haven't read Lofton yet, but appreciate the heads-up.
> Just a wild guess:  was Reagan appointee Judge Edmondson the author?
> When I clerked for Frank Johnson in 1989-90, I and my fellow clerks for
> Johnson and some other judges (yes, we were a stereotypically liberal
> bunch of law clerks) referred to Edmondson as "Darth Vader."  Johnson
> just chuckled when he overheard us.
>
>  More recently, I wrote an entire law review article centered on
> Edmondson's homophobic and poorly reasoned opinion in Shahar v Bowers
> (upholding Ga. AG's firing of lesbian attorney).  See 15 Ga. St. U. L.
> Rev. 381 (1998).
>
> Bryan Wildenthal
> Thomas Jefferson School of Law