Posted by Eugene Volokh:
<a href="http://www.law.com/jsp/article.jsp?id=1105364082768";>Supreme Court's
Refusal To Hear Florida Gay Adoption Case</a>:
I don't have time to say much more about this, so I thought I'd repeat
my [1]original post on the subject:
Does Lawrence v. Texas recognize a fundamental constitutional right
to sexual autonomy? There was a hot debate about this following the
Lawrence decision; I argued [2]here that it does.
Today's [3]Eleventh Circuit decision upholding Florida's statutory
ban on adoptions by practicing homosexuals shows the importance of
this question. The Eleventh Circuit correctly points out that the
right to adopt is a creature of statute; there's no constitutional
right to adopt. But the Supreme Court has often held that even when
the government is distributing a strictly optional benefit, the
Constitution often (though not always) prohibits the government
from discriminating based on the exercise of a constitutional
right.
For instance, I suspect the law generally may not bar adoptions by
people who have expressed certain political beliefs, who practice
certain religions, or who own guns (either if the Second Amendment
is interpreted as protecting an individual right, or if the state
involved is one of the [4]many states [including Florida] whose
constitutions clearly secure an individual right). The government
generally may not use a person's exercise of his First or Second
Amendment rights as a justification for denying them the benefit of
an adoption.
The government may have some power to consider a person's
constitutionally protected conduct in making this decision -- in
government employment decisions, for instance, the Court has held
that the government has consider power to consider an employee's
speech when the speech risks interfering with the efficiency of the
government employer. But courts demand more than just a bare
"rational basis" for such government decisions; they generally
require some pretty substantial evidence that the person's exercise
of his constitutional rights is substantially relevant to the
government's decision.
If Lawrence does recognize a constitutional right to sexual
autonomy that's akin to the freedom of speech, the free exercise of
religion, and the like -- which is what "fundamental constitutional
right" generally means -- then the government would have to show
that allowing adoptions by practicing homosexuals really would pose
some pretty serious problems. But if it doesn't recognize such a
right, but only holds that criminal prohibitions are illegitimate
(perhaps because they fail even rational basis scrutiny), then it
could defend its no-gays adoption policy under a simple rational
basis test.
Note, incidentally, that the Florida Constitution specifically
secures a right to privacy, and Florida courts have interpreted it
as protecting sexual autonomy. Given this, I think the Florida
courts' earlier decision upholding the no gay adoptions statute is
unsound (Dep't of Health & Rehabilitative Servs. v. Cox, 627 So.2d
1210 (Fla. App. 1993), aff'd as to the right to privacy, 656 So.2d
902 (Fla. 1995)). The courts erroneously assumed that, just because
an adoption is a government-provided benefit, the government is
free to deny this benefit based on a person's exercise of his right
to privacy. That, I think, is wrong, just as it's wrong to say
"government employment is a benefit, so the government is free to
deny it to pacifists / Catholics / gun owners."
References
1. http://volokh.com/2004_01_25_volokh_archive.html#107533535927532142
2. http://volokh.com/2003_07_13_volokh_archive.html#105846348887661956
3. http://www.ca11.uscourts.gov/opinions/ops/200116723.pdf
4. http://www1.law.ucla.edu/~volokh/beararms/statecon.htm
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
