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St. Thomas Law Review

Mark Strasser

First Page

473

Document Type

Article

Abstract

Recently, in Lofton v. Security of Department of Children & Family Services, the Eleventh Circuit upheld Florida's gay adoption ban. The opinion is important for a variety of reasons, not least of which is that it was issued after the United States Supreme Court had decided Lawrence v. Texas. The Lofton court's reading of Lawrence was so implausible that it would have been easy for the Supreme Court to have reversed Lofton, while nonetheless offering an analysis significantly narrower than Lawrence. Regrettably, the Supreme Court denied certiorari when the decision was appealed, so we will simply have to wait and see whether the Court's equal protection and due process jurisprudence have suddenly become less robust than they were before Lawrence was decided, or whether the Court is biding its time in making clear that Lofton-like analyses are simply wrong as a matter of law. Part II of this article discusses Lofton in light of Lawrence, suggesting that the Lofton analysis of Lawrence is utterly implausible. Part III discusses Lofton's deferential review of the Florida statute, suggesting that the rationales offered for the statute are not credible and, further, that they would not support the current statute even if they were believable. The article concludes by suggesting that the United States Supreme Court should have granted certiorari and reversed Lofton. Also, when the Court finally does hear a Lofton-like case, it may well issue an opinion much broader than the Lofton reversal would have been, making Lofton supporters rue the day that the Court denied Lofton's petition for a writ of certiorari.

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