"Monday, January 10, 2005
"11:47 AM | Lyle Denniston
"No desire to reopen Lawrence v. Texas
"The Supreme Court on Monday (January 10, 2005) refused to hear the most significant gay rights case to reach the Justices since their June 2003 ruling in Lawrence v. Texas – the historic ruling that established constitutional protection for homosexuals engaging in sexual activity in private. The denial very likely reflects a strong aversion within the Court to reopening Lawrence, especially in any case that seems to bear – even remotely – on the volatile issue of gay marriage. Moreover, the case involved adoption, an issue that is usually a prerogative of state government that the Court is unwilling to oversee.
"In Monday’s order, the Court refused, without comment or explanation, to hear a challenge to Florida’s unique law flatly banning any homosexual from adopting a child – no matter what the facts of any individual case may show. The appeal in Lofton v. Secretary, Florida Department of Children and Families (04-478) urged the Court to extend the protection of Lawrence to gays and lesbians who seek to adopt children, on the theory that Florida’s ban on gay adoptions intruded on the family privacy rights of same-sex couples. While the case did not raise explicitly the question of constitutional protection for same-sex marriage, the resolution of adoption issues touches upon family life issues in which marriage is a closely related factor. Any ruling by the Justices on gay adoption would have been scrutinized most closely to see if it contained any clues about the Court’s view on marital rights for gays – an issue it expressly said it was not deciding in Lawrence.
"The Court’s aversion to hearing the appeal was demonstrated by a couple of factors. First, it acted the first time the case was up for a vote on grant or denial of review – an indication that few, if any, of the Justices had any active interest in getting drawn into the case now, with all of its implications for gay rights. Second, the action came despite a suggestion that the case should be held on the Court’s docket until after the Justices act on a separate but related question about a judicial appointment to the Eleventh Circuit, where the Lofton case was decided. (More on this point, below.)
"The Justices could not have been unaware of the implications of granting review in Lofton: the case set off a major debate within the en banc Eleventh Circuit over what the Lawrence decision means. Moreover, the panel decision in the case took a very narrow view of the scope of Lawrence, treating it as a limited ruling not even based upon a new interpretation of constitutional rights. The Court, the panel opinion said, did not locate directly in the Constitution the right to privacy for homosexual intimacy, but relied upon a cluster of constitutional rights closely related to sexual intimacy and upon the absence of a rational basis for criminalizing such intimacy.
"Florida’s ban on gay adoptions reads: “No person eligible to adopt under this statue may adopt if that person is a homosexual.” It was enacted in 1977, after singer Anita Bryant led a crusade against homosexuality in the state, following Dade County’s adoption of one of the nation’s first local laws against discrimination based on sexual orientation.
"Two gay couples and a gay individual, each of whom wished to adopt a child, challenged the ban after they were ruled ineligible under the state ban.
"The Lofton appeal had been closely watched, not only for signs of the Court’s view about gay rights in the wake of Lawrence, but also because it is potentially one of the most important case likely to be affected by the dispute over President Bush’s use of recess appointments to get controversial judges seated on federal courts. A recess appointee, Circuit Judge William H. Pryor, Jr., was on the Eleventh Circuit when the Lofton case came up on a request for a vote on en banc review in July. The full Circuit Court denied review by a 6-6 vote, with Pryor casting the sixth vote opposed to en banc review. A tie vote denies such review. Had Pryor been ineligible to vote, en banc review presumably would have been granted by a 6-5 vote. That perhaps still could be the case, if his recess appointment ultimately were found to be invalid.
"Thus, the attorneys who filed the Lofton appeal asked the Supreme Court to avoid acting on their case until after it had resolved the continuing constitutional challenge over Pryor’s temporary appointment. By denying review outright, the Court on Monday appeared to ignore that suggestion.
"The Court, in another of its orders on Monday, refused to expedite its consideration of the recess appointments question in the specific case in which the Eleventh Circuit rejected the challenge to Judge Pryor’s appointment. That action only involved the motion to expedite, and not the underlying appeal in Evans v. Stephens (04-828). The Court took no action on that petition, or on another that raises the issue – Franklin v. U.S. (04-5858). There now are four petitions awaiting the Court’s attention on this question. It will likely be clear on Friday, however, whether the Court intends to tackle the question. The Justices have listed two of the petitions - Franklin and Miller v. U.S. (04-38) - for Conference this Friday, and if past practice holds the Court will issue its orders granting certiorari that day. The fourth case is Senn v. U.S. (04-7175), not yet scheduled for action; the government reply in that case is due today.
"(Disclosure: the Goldstein & Howe law firm filed the motion to expedite in Evans, and is handling the petition. The firm if also involved in Franklin and Miller. The author of this post operates independently of the firm’s legal business.)"
http://www.goldsteinhowe.com/blog/index.cfm_______________________________________________________________
Another who agrees w/ my thinking . . . that is, the Justices didn't want to touch this
Lofton case as it is too soon and too close to their prior
Lawrence decision and that the potential door out for the Justices is that this legal issue in family law is typically a state matter.
The upside of this is that since there's no U.S. Supreme Court decision on
Lofton, it does not add fuel to the backlash for an anti-gay federal constitutional amendment. The downside of this is that since there's no U.S. Supreme Court decision on the
Lofton case (which means that the anti-gay adoption state law in Florida remains in force), there may be copycat laws in other states.
However, all that said and done, I believe and I remain firm in this believe that eventually the Court will address these issues of family law as well gay rights. The pot will eventually boil, spill over, and there will be no way out whether its based in state issues or not. Gay rights will be favorably determined across America. Maybe not in a timeline that I and others may prefer but it will happen.
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edited for a typo.
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