bryanw at tjsl.edu
Thu Jan 29 16:44:34 PST 2004
I take it back: I am surprised. As Eugene noted in his recent posting, Judge Birch (a Bush Sr appointee) *dissented* in Shahar in a strikingly gay-friendly opinion that enunciated a very protective understanding of Romer equal protection analysis (I praised Birch's opinion in my Shahar article). I am stunned that he would uphold Florida's irrationally homophobic, cruel, and patently harmful-to-children adoption law.
As for the Florida Supreme Court (discussed in Eugene's post), I don't think its ruling on the privacy argument is necessarily a guide to its views on the equal protection issue. I (and I think many others) would find privacy a rather weak ground on which to attack an adoptive-parent qualification law (though Florida law's weird focus on whether the gay prospective parent is celibate or not does raise a troubling privacy angle). Since adoption involves the state handing over a person to the care of another person, not an issue of respecting the privacy of an individual, or of a relationship pre-dating state intervention. (Florida, however, allows the pre-adoptive state-sponsored creation of a child/gay-parent relationship by giving foster custody to gay persons (even sexually active ones!), while then cruelly and irrationally denying any further stability or security to the relationship that would be furnished by allowing adoption.) Equal protection is the relevant analysis, it seems to me. I'm not sure why the Florida state case never made it back to the Florida Supreme Court on that issue. Perhaps there was some litigation strategy to redirect the issue to the federal courts (if so, now an obvious mistake for those challenging the law).
As my earlier posting noted, I had not yet read Lofton (and still haven't), so I have not yet offered any comment on Lofton's reasoning (though based on David Cruz's trenchant comments below, I have a gut feeling I won't like it -- the result is certainly wrong in my view). Indeed, when I wrote my initial posting, I did not even know Lofton was the gay adoption case (I thought maybe it was the Alabama sex toys case). I was simply responding to the query about being surprised at an obstreperously conservative opinion emanating from the 11th Circuit.
I don't know enough about Carter appointee Judge Hug to be surprised or not at his joining the ruling. There is nothing new in the fact that many Democratic appointees have (on occasion) proven to be homophobic and/or generally rightwing, and in fairness, it must be noted that many Republican appointees have turned out to be pro-gay and strong civil libertarians (such as Judge Kozinski on the 9th Circuit, and until now I would have named Judge Birch on the 11th!). I carefully noted in my earlier email only that "many" RBB (Reagan, Bush Sr & Bush Jr) appointees have been "rightwing extremists."
Judge Carnes, by the way, was (to my sickened horror) appointed by Bush Sr in Sept 1992 to replace Judge Johnson for whom I clerked. And the overwhelmingly Democratic Senate of that time waved him through despite fierce opposition from Michigan (my then-home-state) Sen. Carl Levin. A striking contrast to how Republicans later treated even mildly liberal Clinton appointees, especially coming so late in Bush Sr's term, when it was obvious he was losing and the seat could easily have been help open for Clinton to fill. And yes, in case it's not obvious, I am still angry about it, 12 years later. Carnes's entire career was built around crafting and defending Alabama's death penalty law, and he most certainly fits the bill of a rightwing extremist. I happen to know that Judge Johnson fretted privately about whether to publicly oppose Carnes's nomination, and finally decided not to because he thought it would be unseemly as a sitting judge (and he of course remained a colleague of Carnes's for a few years afterward on senior status). Carnes joined in Edmondson's Shahar opinion, and now in this. I still find it a travesty that he stains the seat Judge Johnson so honorably held. Judge Johnson wrote the 11th Circuit dissent in Bowers that was vindicated last year in Lawrence.
Perhaps there is hope that the Florida Supreme Court may reach a different result under the state constitutional equal protection clause. An en banc 11th circuit reversal is perhaps an outside shot. I personally would not want to see a US Supreme Court appeal, for fear they also would reach the wrong result, with far more devastating national consequences.
Thomas Jefferson School of Law
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of David Cruz
Sent: Thursday, January 29, 2004 3:53 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Lofton case
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.
---------- 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" --
* 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
* 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
David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
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
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