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St. Thomas Law Review

First Page

543

Document Type

Article

Abstract

In Lofton v. Secretary of the Department of Children and Family Services, the United States Court of Appeals for the 11th Circuit sustained Florida's legislative decision to restrict adoption to heterosexual married couples or unmarried individuals not engaged in homosexual conduct. The court rejected claims by prospective homosexual parents that Florida had impermissibly intruded upon their familial privacy rights, unconstitutionally burdened their right to private sexual intimacy, and - by treating homosexual applicants for adoption differently than heterosexual applicants - transgressed the commands of the Equal Protection Clause. The court properly rejected these contentions. All of the plaintiffs' claims ultimately rest upon the submission that consensual private sexual intimacy establishes - as a matter of constitutional law - an entitlement to every legislative and social right historically conferred on fathers, mothers and/or married couples. The recently discovered constitutional protection for the expression and exercise of adult sexual desire, however, does not sweep so broadly. While government may no longer criminally proscribe certain sexual practices between consenting adults, this right of sexual partners to be "left alone" does not mandate judicial bestowal of all social rights, benefits and status desired by the sexual partners. The state's constitutional obligation not to intrude upon consensual sexual relationships, in short, does not impose any obligation to establish or recognize parent/child relationships unrelated to those private intimacies. Unlike the "right to procreate," which is neither created by government action nor subject to intrusive regulatory oversight, adoption is entirely a creature of state law. Through the adoption process, the state - acting in loco parentis for children who do not have a biological relationship with either one or both of their natural parents - shoulders (as Lofton recognized) "the high duty of determining what adoptive home environments will best serve all aspects of the child's growth and development." Adult sexual desire does not control, nor can it supplant, the state's reasoned evaluation of (and preference for) family forms that, on balance, are most likely to further the best interests of an adoptive child.

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