Lofton v. Kearney

Decision Date30 August 2001
Docket NumberNo. 99-0058-CIV.,99-0058-CIV.
PartiesSteven LOFTON; Douglas E. Hougton, Jr.; John Doe and John Roe, minor children, by and through their next friend, Timothy Arcaro; Wayne Larue Smith and Daniel Skahen, Plaintiffs, v. Kathleen A. KEARNEY, Secretary of Florida's Department of Children and Families; and Charles Auslander, District Administrator of District XI of Florida's Department of Children and Families, Defendants.
CourtU.S. District Court — Southern District of Florida

Leslie Cooper, American Civil Liberties Union Foundation, New York City, Elizabeth Schwartz, Miami Beach, FL, Steven Robert Kozlowski, The Kozlowski Law Firm, Miami Beach, FL, Randall C. Marshall, American Civil Liberties Union Foundation of Florida, Inc., Miami, FL, for plaintiffs Steven Lofton, Douglas E. Houghton, Wayne Larue Smith, Daniel Skahen.

Christina A. Zawisza, Children First Project, Nova Southeastern University, Shepard Broad Law Center, Ft. Lauderdale, for plaintiffs John Doe and John Roe.

George H. Moss, Casey Walker, Moss, Henderson, Blanton et al., Vero Beach, FL, for defendants.


KING, District Judge.

THIS CAUSE comes before the Court upon Defendants' Motion for Final Summary Judgment filed July 2, 2001. Child Plaintiffs filed a Response to Defendants' Motion for Final Summary Judgement on July 17, 2001. Adult Plaintiffs filed a Response to Defendants' Motion for Final Summary Judgment on July 18, 2001. No reply has been filed and the time to do so has passed. The Court heard oral arguments on Defendants' Motion for Final Summary Judgment and Plaintiffs' responses thereto on July 20, 2001. The issue before this Court is whether Florida Statute § 63.042(3)1 ("homosexual adoption provision") which prohibits adoptions by homosexuals2 impermissibly infringes on the Plaintiffs' federal constitutional right to privacy, intimate association and family integrity and violates the Due Process Clause as well as the Equal Protection Clause of the Constitution.

A. Plaintiffs

Plaintiff Steven Lofton ("Lofton") is a registered pediatric nurse and a certified long-term foster parent. He has raised three foster children, including child Plaintiff John Doe ("Doe"), since their infancy. All three of Lofton's foster children tested positive for HIV at birth. While the other two foster children developed AIDS, Doe successfully sero-converted during infancy and no longer tests positive for HIV. For the past ten years, Lofton has cared for his foster children full-time, administering their medications and looking after them when they were sick. For his efforts, he received the Outstanding Foster Parenting award from the Children's Home Society, a child placement agency licensed by Florida's predecessor agency to the Department of Children and Families ("DCF"). When Doe was freed for adoption in May 19, 1994, Lofton submitted an application with DCF in September of 1994 to adopt him. However, under the homosexual adoption provision, Lofton was automatically disqualified from adopting because he is a gay man.3

Plaintiff Douglas E. Houghton, Jr., ("Houghton") is a clinical nurse specialist and legal guardian of child Plaintiff John Roe4 ("Roe"). Houghton has been Roe's caretaker since Roe's biological father, suffering from alcohol abuse and inconsistent employment, voluntarily left him with Houghton when Roe was four-years old. A few years after becoming Roe's legal guardian, Houghton decided to adopt him pursuant to Roe's biological father's decision to terminate his parental rights. Because Roe is not in DCF custody, Houghton must file an adoption petition in the Circuit Court for the Eleventh Judicial Circuit of and for Miami Dade County. However, Florida law requires that before filing an adoption petition with a State circuit court, Houghton must first receive a favorable preliminary home study evaluation. See FLA. STAT. § 63.112(2)(b). During his May 19, 2000, preliminary home study interview, Houghton was informed that but for his homosexuality and the homosexual adoption provision he would have received a favorable preliminary home study evaluation.5 Thus, Houghton is precluded him from filing an adoption petition for Roe in the State circuit court.

Plaintiffs Wayne Larue Smith ("Smith") and Daniel Skahen6 ("Skahen") became a licensed DCF family foster home after successfully completing a requisite 10 week course in January of 2000. Since then, they have cared for three foster children but none who have been freed for adoption. On or about May 1, 2000, Smith and Skahen submitted at-large adoption applications7 with DCF District XI to serve as adoptive parents. As required on the adoption application, both Smith and Skahen indicated that they are gay men. On May 15, 2000, they received written notices from DCF stating that their adoption applications had been denied on the basis that the homosexual adoption provision prohibits gay men from adopting.

B. Defendants

Defendants Kathleen A. Kearney ("Kearney") and Charles Auslander ("Auslander") have been sued in their official capacity as the individuals responsible for enforcing the homosexual adoption provision. Kearney is the Secretary of Florida's Department of Children and Families. She is responsible for the enforcement of the homosexual adoption provision in Florida. Auslander is the District Administrator of District XI of Florida's DCF. He is responsible for the enforcement of the homosexual adoption provision in MiamiDade and Monroe Counties.


The above-styled action was initiated on May 26, 1999, by the above named Plaintiffs along with Brenda and Gregory Bradley and Angela Gilmore. Brenda and Gregory Bradley alleged that they intended to designate a homosexual relative to be the guardian and eventual adoptive parent of their children in the event of their deaths. Angela Gilmore alleged that she is a lesbian who desired to be an adoptive parent but was automatically disqualified under the homosexual adoption provision. In its April 21, 2000, Order Granting in Part Defendants' Motion to Dismiss, the Court concluded that all Plaintiffs except for Lofton and Doe failed to establish an injury in fact that is both real and immediate. See Lofton v. Kearney, 93 F.Supp.2d 1343, 1348 (S.D.Fla.2000). Except for Lofton, none of the adult Plaintiffs had actually applied to become adoptive parents for any child nor had been denied the opportunity to adopt. See id. at 1346. Thus, the Court dismissed without prejudice the claims of these Plaintiffs for lack of standing.

On May 22, 2000, Plaintiffs filed their First Amended Complaint ("Amended Complaint"). In the Amended Complaint, Houghton indicated that since the Court's original dismissal, he had a preliminary home study conducted but was denied a favorable home study evaluation because of his sexuality. In addition, Smith and Skahen indicated that they had submitted adoption applications but had been rejected on the basis of their sexuality. The Amended Complaint also re-alleged the claims made previously by the Bradleys without any change in facts.8 In its October 24, 2000, Order Granting in Part and Denying in Part Defendants' Motion to Dismiss First Amended Complaint, the Court declared that except for the Bradleys, Plaintiffs had established actual injury in fact sufficient to grant them standing to bring forth their claims. The Bradleys' claims were dismissed by the Court for the same reasons set forth in its April 21, 2000, Order. The Court declared that it would defer ruling on the merits of Plaintiffs' claims until summary judgment.

Plaintiffs' Amended Complaint alleges that the homosexual adoption provision violates the fundamental rights of Lofton, Houghton, Doe and Roe to familial privacy, intimate association and family integrity protected by the First Amendment and the Due Process Clause of the 14th Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983. According to Plaintiffs Lofton, Doe, Houghton and Roe, the homosexual adoption provision prohibits them from obtaining permanency in their relationships which creates uncertainty about the future integrity of their families and imposes a significant burden on the intimate, highly personal relationships between them. In addition, all Plaintiffs allege that by only prohibiting lesbians and gay men from adopting children, the homosexual adoption provision violates their rights to equal protection guaranteed by the 14th Amendment to the United States Constitution. Defendants move for summary judgment on all of Plaintiffs' claims.


Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citations omitted). The Court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. If the movant meets this burden, the burden then shifts to the nonmoving party to establish that a genuine dispute of material fact exits. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993). If the evidence relied on is such that a reasonable jury could return a verdict in favor of the nonmoving party, then the Court should refuse to grant summary judgment. See id. at 919. However, a mere scintilla of evidence in support of the nonmoving party's position is insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505. If the evidence is merely colorable or is not significantly probative, summary judgment is...

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2 cases
  • Snetsinger v. Montana University System
    • United States
    • Montana Supreme Court
    • December 30, 2004
    ... ... See Lofton v. Kearney (S.D.Fla.2001), 157 F.Supp.2d 1372, 1382 (collecting cases at n. 14), affirmed by Lofton v. Sec'y of the Dep't of Children and Family ... ...
  • Chick-Fil-a, Inc. v. Cft Development, LLC
    • United States
    • U.S. District Court — Middle District of Florida
    • September 3, 2009
    ... ...         47. "[A]dmissions in pleadings[s] are deemed judicial admission[s], binding on the party who makes them." Lofton v. Kearney, 157 F.Supp.2d 1372, 1375 n. 3 (S.D.Fla.2001) (fact in answer had effect of judicial admission) (citing Missouri Hous. Dev. Comm'n v ... ...
2 books & journal articles
  • Equal Protection
    • United States
    • Georgetown Journal of Gender and the Law No. XXIII-2, January 2022
    • January 1, 2022
    ...J., concurring) (noting that “preserving the traditional institution of marriage” is a legitimate state interest); Lofton v. Kearney, 157 F. Supp. 2d 1372, 1384 (S.D. Fla. 2001) (holding that a Florida statute barring homosexuals from adopting children did not violate the Equal Protection C......
  • The Gospel according to the state: an analysis of Massachusetts adoption laws and the closing of Catholic Charities adoption services.
    • United States
    • Suffolk University Law Review Vol. 41 No. 4, September 2008
    • September 22, 2008
    ...adoption). (108.) See FLA. STAT. [section] 63.042(3) (2006) (prohibiting adoption by homosexuals); see also Lofton v. Kearney, 157 F. Supp. 2d 1372, 1381 (S.D. Fla. 2001) (upholding constitutionality of Florida statute prohibiting homosexual adoptions), aff'd sub nom., Lofton v. Sec'y of De......

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