Lofton case

Rick Duncan nebraskalawprof at
Fri Jan 30 06:13:21 PST 2004

I must admit that the strident attacks coming from
this list on the 11th Circuit's opinion in Lofton
strike me as based more on the critics' ideology than
on careful analysis of the Lofton opinion.

The opinion strikes me as a very thoughtful and
measured analysis not only of Lawrence, but of many
Supreme Court precedents bearing on the issues in
Lofton (which were much different than the issues in

As Lofton points out, the Court in Lawrence did not
explicitly hold that sexual autonomy is a fundamental
right. Thus, the Court in Lawrence did not provide us
with a carefully reasoned fundamnetal rights analysis
under its own test set forth in Glucksberg. If it
wishes lower courts to recognize new and novel
fundamental rights, the Sup Ct should declare them and
provide the reasoning needed to apply them.

As the court in Lofton points out, Lawrence's holding
was that "substantive due process does not permit a
state to impose a criminal prohibition on private
consensual homosexual conduct," but was careful to
limit its scope by emphasizing that the "present case
[i.e.Lawrence] does not involve minors [nor the issue]
whether the government must give formal recognition to
any relationship that homosexual persons seek to

In its own words, the Lawrence opinion does not apply
to issues like that in Lofton. Given Glucksberg and
the Supreme Court's frequent emphasis on federalism
(yikes!"states rights")and family law and adoption as
issues at the core of state responsibility, it was
very reasonable and appropriate for the court in
Lofton to refuse to break new ground in this sensitive
area involving adoption and the bests interests of

Bravo! This opinion is not an extremist opinion; it is
a thoughtful, well-reasoned, and balanced opinion.

Rick Duncan


Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"A liberal is one who says it's all right for an 18-year-old girl to perform in a pornographic movie as long as she gets paid the minimum wage." Anonymous

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