GAY ADOPTION AS FUNDAMENTAL RIGHT: Joanna Grossman

...And for other reasons, Lawrence would seem to be squarely applicable here. The liberty interest embraced in Lawrence was the freedom of adults to order their private lives in the ways they see fit. Adoption is part of building a life, and a family; as is choosing to cohabit and coparent with a partner of the same-sex.

Moreover, the constitutional right Lawrence protected was that of autonomy and personhood. There a few choices more integral to one's autonomy, and to one's self-definition, than the choice to adopt a child--especially one for whom one has provided lifelong care. ...

The Supreme Court should have reviewed Lofton.

Granted, the case does not present a split among federal circuits about the proper interpretation or application of a federal statute or constitutional right--a typical reason for the Court to grant review. Since Florida's statute is unique, other circuits have not faced the question. Its uniqueness may have done in its chances for review.

But review of the case would have allowed the Court to elaborate on Lawrence. It would also have allowed the Court to make clearer the meaning of Romer v. Evans -- a case striking down an anti-gay statute in Colorado.

The court held in Romer, applying equal protection principles, that legislation cannot survive even rational basis review if "it is born of animosity toward the class of persons affected." ("Rational basis" review is the lowest constitutional standard of review the Supreme Court applies--asking only that a challenged law have a rational basis. But recently, the Supreme Court has made clear that certain laws do fail even rational basis review.)

Given the openly anti-gay origins of Florida's law, it would have been hard for the Supreme Court to find the law constitutionally valid. If any law was "born of animosity" toward gays, it is this Florida statute.

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posted by Eve at 1:46 PM VOTE

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