Gay Adoption: Why did the Supreme Court stay silent?

Gay Adoption: Why did the Supreme Court stay silent?

by Denise Callahan, December 2009

Was the U.S. Supreme Court making a statement when it declined to hear a gay adoption case? Most legal experts say the court's silence shouldn't be taken too seriously. After all, thousands of cases land on the highest court's doorstep every month. Yet, given the publicity surrounding Florida's law, the court's refusal to hear Lofton v. Secretary of The Florida Department of Children and Family Services (DCFS) would seem to communicate approval for the Florida adoption ban loud and clear.

What you may not know is that the Supreme Court is probably the only government body that doesn't have to explain itself. In other words, the court never has to tell you why it has refused to hear a case. At the same time, it doesn't mean we can't explore potential reasons why the court didn't select this case either.

Before we continue, let's check out the legal precedent

The Florida case started with four plaintiffs: Steven Lofton, Douglas Houghton, Wayne Smith and Daniel Skahen. These men all have two things in common. One, they are all gay. And, two, all four men petitioned DCFS to adopt the children they are either currently caring for as guardians or as foster parents. However, because Florida law currently forbids gay adoption, each man's request has been summarily denied.


The four men in response sued under a similar U.S. Supreme Court case - Lawrence and Garner v. Texas. In that case, two Texans were arrested and fined. Their offense: violating the state law against sodomy between same-sex partners. What is most interesting about this case however is that the police were paged to Lawrence's house under the auspices of a weapons disturbance but what they found were two men engaging in sexual intercourse.

Ultimately, the Supreme Court ruled that the constitution protects the right of all persons, including homosexuals, to decide what kind of sexual activity to engage in within their private lives. In other words, a state ban on specific sexual conduct is unconstitutional because it encroaches on a personal and intimate decision that people should be able to make without the intrusion of government.

Back to the Florida case

The four Florida plaintiffs believed the Lawrence and Garner v. Texas case would serve as a strong justification for gay adoption. Here is the reason why. The Supreme Court asserted that all persons have a right to be free from intrusion by the government into decisions regarding sexual conduct. This privacy should in turn extend into adoption and the government should not be able to dictate whether or not homosexual couples can adopt children.


However, neither the district nor the appeal courts agreed with this logic. Both courts upheld Florida's right to ban gay adoptions.

What does it mean when the Supreme Court declines a case?

There are lots of reasons why the Supreme Court selects or declines any given case. Over 8,000 petitions flood the court each term. Just the sheer number of petitions forces the court to be highly selective.

A second deciding factor could be that the lower courts applied precedent correctly. In other words, the circuit court correctly concluded that the Lawrence decision about sexuality could not be extended to adoption simply because both sets of plaintiffs were homosexual. The court further noted that policy is best left to the legislature and not the courts.

Yet, another possibility for the Supreme Court's sidestep? The lower courts haven't had many opportunities to apply the Lawrence decision to similar cases. A case is normally ripe for Supreme Court review if one or more lower courts issue differing opinions on a given subject.

Others have placed Chief Justice Rehnquist at the nexus. The uncertainty about Rehnquist's future may warrant caution about new attacks on thorny public policy decisions.

Whatever the reasons for the Supreme Court's current silence, the Lofton case certainly won't be the last we hear about gay adoption.