Lofton v. Secretary of Dept. of Children, No. 01-16723.

• Decision Date: 21 July 2004
• Docket Number: No. 01-16723.
• Citation: 377 F.3d 1275
• Parties: Steven LOFTON, Douglas Houghton, Timothy Acaro, next friend of John Doe and John Roe, Wayne Smith, Daniel Skahen, John Doe, John Roe, minor children, Plaintiffs-Appellants, Angela Gilmore, et al., Plaintiffs, v. SECRETARY OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, (formerly H.R.S.), District Administrator, District XI of Florida Department of Children and Family Services, Defendants-Appellees, Charlie Crist, Attorney General of the State of Florida, Defendant, Robert Pappas, District Administrator, District X of Florida Department of Children and Family Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

377 F.3d 1275

Steven LOFTON, Douglas Houghton, Timothy Acaro, next friend of John Doe and John Roe, Wayne Smith, Daniel Skahen, John Doe, John Roe, minor children, Plaintiffs-Appellants Angela Gilmore, et al., Plaintiffs, v. SECRETARY OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, (formerly H.R.S.), District Administrator, District XI of Florida Department of Children and Family Services, Defendants-Appellees Charlie Crist, Attorney General of the State of Florida, Defendant Robert Pappas, District Administrator, District X of Florida Department of Children and Family Services, Defendant-Appellee.

No. 01-16723.

United States Court of Appeals, Eleventh Circuit.

July 21, 2004.

Randall C. Marshall, American Civil Liberties Union of Florida, ACLU Foundation of Florida, Inc., Miami, FL, Leslie Cooper, Matthew A. Coles, American Civil Liberties Union, New York City, Elizabeth F. Schwartz, Miami Beach, FL, Gerard F. Glynn, Orlando, FL, for Plaintiffs-Appellants.

Casey Walker, Murphy & Walker, P.L., Vero Beach, FL, for Defendants-Appellees.

Philip L. Graham, Jr., Sullivan & Cromwell, New York City, for Child Welfare League of America, Amicus Curiae.

Ruth E. Harlow, Lambda Legal Defense, Brooklyn, New York, for Lambda Legal Defense and Education Fund, Amicus Curiae.

William C. Duncan, Marriage Law Project, Washington, DC, for Hon. R.J. Ball and 21 Members of Legislature, Amicus Curiae.

Appeal from the United States District Court for the Southern District of Florida (No. 99-10058-CV-JLK); James Lawrence King, Judge.

ON PETITION FOR REHEARING EN BANC

(Opinion Jan. 28, 2004, 11th Cir., 358 F.3d 804)

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.

BY THE COURT:

The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedures; Eleventh Circuit Rule 35-5), the Petition for Rehearing En Banc is DENIED.

BIRCH, Circuit Judge, Specially Concurring in the Denial of Rehearing En Banc:

The dissents to the denial of rehearing en banc both agree that the Equal Protection Clause challenge to the Florida statute at issue should have been embraced by our court. After a review of the Supreme Court's decisions in Eisenstadt,¹ Moreno,² Cleburne,³ and Romer,⁴ the vociferous dissent by my sister jurist (for whom I have great respect and affection), liberally quoting from Justice O'Connor's concurring opinion in Lawrence,⁵ concludes that under a rational basis analysis or, alternatively, an animus-motivated analysis, the Florida adoption statute at issue is constitutionally flawed. In addition to the discussion by the unanimous panel in Lofton, 358 F.3d 804, 817-827, that reaches a contrary conclusion, I would offer the following additional considerations to balance those suggested by Judge Barkett's spirited and well-crafted dissent.

The Lofton panel's analysis and approach in this case was premised on a fundamental principal or philosophy, articulated well by Justice Felix Frankfurter in his concurring opinion in Dennis v. United States, 341 U.S. 494, 525, 71 S.Ct. 857, 875, 95 L.Ed. 1137 (1951), when he observed:

Courts are not representative bodies. They are not designed to be a good reflex of a democratic society.... Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.

The dissent, instead of approaching the issue as the panel did in this case by asking "[W]hether the Florida legislature could have reasonably believed that prohibiting adoption into homosexual environments would further its interest in placing adoptive children in homes that will provide them with optimal developmental conditions," Lofton, 358 F.3d at 820, seeks to disparage a fundamental rationale of the Florida legislature. Both the Florida attorney general and a Florida appellate court, specifically considering an equal protection challenge to the statute, articulated a rational and arguable basis for the statute: "[W]hatever causes a person to become a homosexual, it is clear that the state cannot know the sexual preferences that a child will exhibit as an adult. Statistically, the state does know that a very high percentage of children available for adoption will develop heterosexual preferences." Fla. Dep't of Health & Rehab. Servs. v. Cox, 627 So.2d 1210, 1229 (Fla.Dist.Ct.App.1993). Stated differently, the mainstream of contemporary American family life consists of heterosexual individuals. Can it be seriously contended that an arguably rational basis does not exist for placing adoptive children in the mainstream of American family life? And that to do so is irrational? I think not. In fact, the Congress of the United States in determining what is in the best interests of other special needs children, the handicapped, has passed laws focused on educationally mainstreaming such children. See, e.g., 20 U.S.C. § 1412(a)(5)(A) ("To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled").

It is also worthy to note that the dissent would focus on conduct by Florida's executive branch (the Department of Children and Family Services ["the Department"]) and Florida's judicial branch (citing just two isolated custody determinations), which the dissent argues is inconsistent with the legislature's arguably rational bases. Recall that the Supreme Court has held: "It could be that the assumptions underlying these rationales are erroneous, but the very fact that they are arguable is sufficient, on rational-basis review, to immunize the legislative choice from constitutional challenge." Heller v. Doe, 509 U.S. 312, 333, 113 S.Ct. 2637, 2649-50, 125 L.Ed.2d 257 (1993) (citation and internal punctuation marks omitted) (emphasis mine). Moreover, post-legislation conduct, including the passage of regulations, by the executive agency that must find placements for parentless children, which may be at times inconsistent with the spirit, if not the letter, of a legislative enactment, should not weigh heavily in the calculus of rational basis review. The executive branch, acting through unelected bureaucrats who, while undoubtedly concerned about the best interests of their wards, often are motivated by other concerns such as coping with inadequate resources and an unmanageable number of unplaced children. As the Lofton panel recognized:

The Equal Protection Clause of the Fourteenth Amendment proclaims that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of laws." U.S. Const. amend. XIV, § 1. The central mandate of the equal protection guarantee is that "[t]he sovereign may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective." Lehr v. Robertson, 463 U.S. 248, 265, 103 S.Ct. 2985, 2995, 77 L.Ed.2d 614 (1983). Equal protection, however, does not forbid legislative classifications. Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2331, 120 L.Ed.2d 1 (1992). "It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike." Id. Unless the challenged classification burdens a fundamental right or targets a suspect class, the Equal Protection Clause requires only that the classification be rationally related to a legitimate state interest. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996). As we have explained, Florida's statute burdens no fundamental rights. Moreover, all of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class.¹⁶ Because the present case involves neither a fundamental right nor a suspect class, we review the Florida statute under the rational-basis standard.

Rational-basis review, "a paradigm of judicial restraint," does not provide "a license for courts to judge the wisdom, fairness, or logic of legislative choices." F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313-14, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993) (citation omitted). The question is simply whether the challenged legislation is rationally related to a legitimate state interest. Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993). Under this deferential standard, a legislative classification "is accorded a strong presumption of validity," id. at 319, 113 S.Ct. at 2642, and "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification," id. at 320, 113 S.Ct. at 2642 (citation omitted). This holds true "even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous." Romer, 517 U.S. at 632, 116 S.Ct. at 1627. Moreover, a state has "no obligation to produce evidence to sustain the rationality of a statutory classification." Heller, 509 U.S. at 320, 113 S.Ct. at 2643. Rather, "the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record." Id. at 320-21, 113 S.Ct. at 2643 (citation omitted).

¹⁶ Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir.1997); Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126 (9th Cir.1997); Richenberg v. Perry, 97 F.3d 256 (8th Cir.1996); Thomasson v. Perry, 80 F.3d 915 (4th Cir.1996); Steffan v. Perry, 41 F.3d 677 (D.C.Cir.1994); High Tech...