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.


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