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

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Birch
• Citation: 358 F.3d 804
• 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.
• Docket Number: No. 01-16723.
• Decision Date: 28 January 2004

358 F.3d 804 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. Decided January 28, 2004.

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

Casey Walker, Moss, Henderson, Blanton & Lanier, P.A., 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, New York City, 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.

Before BIRCH, CARNES and HUG^*, Circuit Judges.

BIRCH, Circuit Judge:

In this appeal, we decide the states' rights issue of whether Florida Statute § 63.042(3), which prevents adoption by practicing homosexuals, is constitutional as enacted by the Florida legislature and as subsequently enforced. The district court granted summary judgment to Florida over an equal protection and due process challenge by homosexual persons desiring to adopt. We AFFIRM.

I. BACKGROUND

A. The Challenged Florida Statute

Since 1977, Florida's adoption law has contained a codified prohibition on adoption

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by any "homosexual" person. 1977 Fla. Laws, ch. 77-140, § 1, Fla. Stat. § 63.042(3) (2002).¹ For purposes of this statute, Florida courts have defined the term "homosexual" as being "limited to applicants who are known to engage in current, voluntary homosexual activity," thus drawing "a distinction between homosexual orientation and homosexual activity." Fla. Dep't of Health & Rehab. Servs. v. Cox, 627 So.2d 1210, 1215 (Fla.Dist.Ct.App.1993), aff'd in relevant part, 656 So.2d 902, 903 (Fla.1995). During the past twelve years, several legislative bills have attempted to repeal the statute,² and three separate legal challenges to it have been filed in the Florida courts.³ To date, no attempt to overturn the provision has succeeded. We now consider the most recent challenge to the statute.

B. The Litigants

Six plaintiffs-appellants bring this case. The first, Steven Lofton, is a registered pediatric nurse who has raised from infancy three Florida foster children, each of whom tested positive for HIV at birth. By all accounts, Lofton's efforts in caring for these children have been exemplary, and his story has been chronicled in dozens of news stories and editorials as well as on national television.⁴ We confine our discussion of that story to those facts relevant to the legal issues before us and properly before us in the record. John Doe, also named as a plaintiff-appellant in this litigation, was born on 29 April 1991. Testing positive at birth for HIV and cocaine, Doe immediately entered the Florida foster care system. Shortly thereafter, Children's Home Society, a private agency, placed Doe in foster care with Lofton, who has extensive experience treating HIV patients. At eighteen months, Doe sero-reverted and has since tested HIV negative. In September of 1994, Lofton filed an application to adopt Doe but refused to answer

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the application's inquiry about his sexual preference and also failed to disclose Roger Croteau, his cohabitating partner, as a member of his household. After Lofton refused requests from the Department of Children and Families ("DCF") to supply the missing information, his application was rejected pursuant to the homosexual adoption provision. Shortly thereafter, in early 1995, William E. Adams, Jr., a professor of law who had participated in one of the previous legal challenges to Fla. Stat. § 63.042(3), wrote to the American Civil Liberties Union ("ACLU") and informed it that Lofton and Croteau would make "excellent test plaintiffs." R3-108 at 3. Two years later, in light of the length of Doe's stay in Lofton's household, DCF offered Lofton the compromise of becoming Doe's legal guardian. This arrangement would have allowed Doe to leave the foster care system and DCF supervision. However, because it would have cost Lofton over $300 a month in lost foster care subsidies and would have jeopardized Doe's Medicaid coverage, Lofton declined the guardianship option unless it was an interim stage toward adoption. Under Florida law, DCF could not accommodate this condition, and the present litigation ensued.

Plaintiff-appellant Douglas E. Houghton, Jr., is a clinical nurse specialist and legal guardian of plaintiff-appellant John Roe, who is eleven years old. Houghton has been Roe's caretaker since 1996 when Roe's biological father, suffering from alcohol abuse and frequent unemployment, voluntarily left Roe, then four years old, with Houghton. That same year, Houghton was appointed co-guardian of Roe along with one Robert Obeso (who otherwise has no involvement in this case). After Roe's biological father consented to termination of his parental rights, Houghton attempted to adopt Roe. Because of Houghton's homosexuality, however, he did not receive a favorable preliminary home study evaluation, which precluded him from filing the necessary adoption petition in state circuit court. Fla. Stat. §§ 63.092(3), 63.112(2)(b).

Plaintiff-appellants Wayne Larue Smith and Daniel Skahen, an attorney and real estate broker residing together in Key West, became licensed DCF foster parents after completing a requisite ten-week course in January of 2000. Since then, they have cared for three foster children, none of whom has been available for adoption. On 1 May 2000, Smith and Skahen submitted applications with DCF to serve as adoptive parents.⁵ On their adoption applications, both Smith and Skahen indicated that they are homosexuals. On 15 May 2000, they received notices from DCF stating that their applications had been denied because of their homosexuality.

C. Procedural History

Appellants filed suit in the United States District Court for the Southern District of Florida and named as defendants Kathleen A. Kearney and Charles Auslander in their respective official capacities as DCF Secretary and DCF District Administrator for Dade and Monroe Counties. Their complaint alleged that the statute violates appellants' fundamental rights and the principles of equal protection. Jointly, appellants asked the district court to declare Fla. Stat. § 63.042(3) unconstitutional and to enjoin its enforcement. Appellants also sought class certification on behalf of two purported classes: all similarly situated adults and all similarly situated children. The district court denied the request for class certification and granted summary judgment in favor

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of the state on all counts, thereby upholding the statute. It is from this judgment that appellants now appeal.

Appellants assert three constitutional arguments on appeal. First, appellants argue that the statute violates Lofton, Houghton, Doe, and Roe's rights to familial privacy, intimate association, and family integrity under the Due Process Clause of the Fourteenth Amendment. Second, appellants argue that the Supreme Court's recent decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), recognized a fundamental right to private sexual intimacy and that the Florida statute, by disallowing adoption by individuals who engage in homosexual activity, impermissibly burdens the exercise of this right. Third, appellants allege that, by categorically prohibiting only homosexual persons from adopting children, the statute violates the Equal Protection Clause of the Fourteenth Amendment. Each of these challenges raises questions of first impression in this circuit.

II. DISCUSSION

A. Summary Judgment Standard

We review a summary judgment decision de novo and apply the same legal standard used by the district court. Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1236 (11th Cir.2003). In conducting our review, we view all evidence and factual inferences in the light most favorable to the nonmoving party. Id. Summary judgment is proper 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). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment. Id.

B. Florida's Adoption Scheme

Appellants' challenge cannot be viewed apart from the context in which it arises. Under Florida law, "adoption is not a right; it is a statutory privilege." Cox, 627 So.2d at 1216. Unlike biological parentage, which precedes and transcends formal recognition by the state, adoption is wholly a creature of the state. Cf. Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 845, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14 (1977) (noting that, unlike the natural family, which has "its origins entirely apart from the power of the State,"...