Minnesota Law Review

Comment, Giving Lawrence Its Due: How the Eleventh Circuit Underestimated the Due Process Implications of Lawrence v. Texas in Lofton v. Secretary of the Department of Children & Family Services

John Doe was born an orphan.  His life changed immediately when Steven Lofton adopted him.  But John has no assurance that the State will allow him to remain with his family.  Although John calls his foster father “Dad,” that will never be Steven Lofton’s legal title.  John’s foster father is gay, and their relationship is governed by the only State where being gay stands as an absolute bar to adoption: Florida.

In Lofton v. Secretary of the Department of Children & Family Services, the Court of Appeals for the Eleventh Circuit considered the Lofton family’s constitutional challenge to Florida Statute section 63.042(3), which prohibits gays from adopting.  While Lofton was pending, the U.S. Supreme Court handed down Lawrence v. TexasLawrence invoked a substantive due process doctrine to strike down a Texas law criminalizing same-sex sodomy.  The Eleventh Circuit in Lofton hastily determined that Lawrence should have no impact on the outcome of the case before it and upheld Florida’s law.

The true holding of Lawrence and its due process implications have been the subject of frenzied academic debate and lower courts attempting to apply Lawrence have found it a daunting task.  This Comment traces the Supreme Court’s relevant due process jurisprudence, culminating in Lawrence, and argues that Lawrence recognized a fundamental right to privacy under the Due Process Clause. This Comment further argues that the Eleventh Circuit in Lofton underestimated the import of Lawrence to the case before it.  Applying Lawrence properly, the Eleventh Circuit should have concluded that Florida Statue section 63.042(3) impermissibly burdens Lofton’s right to privacy under the Due Process Clause and deemed the law unconstitutional.  Because the Supreme Court recently denied a petition to consider the Lofton case, it is imperative that future courts recognized the errors of Lofton and independently decline to follow its reasoning.


:: View PDF

News & Events

  • Fall Submissions Open – Headnotes

    The Minnesota Law Review: Headnotes fall submissions period is open. For more information, please visit our submissions page. Share this: on Twitter on Facebook on Google+

  • Vol. 97 Piece Quoted in Mother Jones Article

    A recent Mother Jones article predicting how the Roberts Court would resolve King v. Burwell draws on How Business Fares in the Supreme Court from Volume 97. You can read the article here. Share this: on Twitter on Facebook on Google+

  • Welcome to De Novo

    For nearly one hundred years, the Minnesota Law Review has been a leader amongst academic legal publications. When Professor Henry J. Fletcher launched the journal in 1917, his goal was simple. It was to “contribute a little something to the systematic growth of the whole law.” Since then, the Law [...]

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]


cforms contact form by delicious:days