Closing the Crusade: A Brief Response to Professor Woodhouse

• Author: Mark R. Brown
• Position: Newton D. Baker/Baker & Hostetler Chair of Law, Capital University Law School
• Pages: 331-343

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"And I hope Anita Bryant never, ever does one of my songs, no, no, no."

- Jimmy Buffet¹

Professor Barbara Bennett Woodhouse makes a strong case for striking down Florida's ban on homosexual adoption.² Florida, after all, prohibits no other group from adopting children: "Married couples, single adults, adults with physical disabilities, divorced men and women, parents of a different race than the adoptive child-all may adopt. Even convicted felons are not categorically barred from adopting."³ Coupled with Florida's foster care crisis-children, on average, spend over three years in Florida's foster care system⁴-categorically barring adoption on any basis is bizarre. If not for the suffering inflicted on children and de facto parents, one might even say Florida's bar is silly.

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The age-old problem is how to overcome entrenched bigotry. Growing up in Kentucky⁵ during the 1970s, I followed from afar Anita Bryant's "crusade" against homosexuality,⁶ which resulted in the passage of § 63.042(3) in 1977.⁷ Having taught law in Florida for almost twenty years beginning in the mid-1980s, I witnessed firsthand the Religious Right's hateful campaign against gays and lesbians. Although I believe that time will bring change to the Sunshine State, I suspect that Florida's reigning religious/political culture is not going to confess error quickly or quietly. Florida's battles over racial desegregation-which extended well into the 1970s, 1980s, and beyond⁸-illustrate the difficulty of unseating entrenched religious/cultural hierarchies. My guess is that equal rights advocates will continue for the foreseeable future to experience fierce resistance to their political efforts in Florida.⁹

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If Florida is to change in the immediate future, that change will likely have to come from the courts-whether state or federal. I thus applaud Professor Woodhouse's attempt to fashion a thorough and cohesive constitutional challenge to § 63.042(3).¹⁰

Because I agree with her thesis-that nothing is gained by using bigoted stereotypes to ban adoptions¹¹-my response to Professor Woodhouse is short: I offer only one criticism, two cautions, and two suggestions for challenging § 63.042(3). Although my suggestions are by no means new (and obviously come as no surprise to Professor Woodhouse),¹² I believe they are sound and might someday prevail.

Professor Woodhouse argues that all "waiting children," including those who have formed no intimate relationship with prospective parents, have a fundamental right to adoption.¹³ By waiting children, Professor Woodhouse means "children in state care who have no legal parents and who are waiting to be adopted."¹⁴ So defined, Professor Woodhouse neatly avoids one of my concerns-the competing rights of a pre-adopted child's biological parents.¹⁵ Extending rights to children that are independent of the rights of their parents invites extensive governmental intervention into existing family units.¹⁶ History teaches that caution is needed when thePage 334 government attempts direct oversight of America's families,¹⁷ a worry not lost on modern commentators.¹⁸ Child-centered rights could hurt American families more than they assist homeless children.

Even when cabined by Professor Woodhouse's focus on children without families, I still worry about assigning fundamental rights directly to minors. As argued by Professor Guggenheim, the slippery slope of adoption rights could threaten existing families.¹⁹ The step from "no family" to "broken family" is not a large one.²⁰ If Professor Woodhouse's right is extended to broken families, the ramifications could be severe. My own fear is that children's rights might embolden states to needlessly "rescue" more children.²¹ As Professor Woodhouse notes, "Adoption, for better or worse, presents a tempting but dangerous opportunity for social engineering." Hence, my lone criticism of Professor Woodhouse's child-centered approach is that it risks disruption of the American family.²²

Assuming that the right to adoption is assigned to potential parents (and not children), it still encounters theoretical difficulties. The SupremePage 335 Court, in DeShaney v. Winnebago County Department of Social Services²³ observed that the federal Constitution protects people from government; it does not demand that government volunteer protection or services.²⁴ If it were any other way-if the Constitution guaranteed affirmative rights and protections-judicial activism at the federal level would skyrocket. Most constitutional scholars question the wisdom of having federal courts manage affirmative governmental obligations.²⁵ Even if federal courts could competently perform such a task, the cloak of affirmative constitutional duty could cause states to invade familial privacy.²⁶ I would not say that the DeShaney problem is indistinguishable or insurmountable,²⁷ but I believe DeShaney clouds Professor Woodhouse's proposed constitutional right.

Assuming that DeShaney can be overcome, another irksome issue rests in the details of Professor Woodhouse's proposed constitutional right. Marriage offers a useful illustration. Short of declaring marriage a fundamental right,²⁸ the Supreme Court has done remarkably little with marriage's constitutional details. Fundamental rights, of course, are ordinarily entitled to the protections of strict scrutiny, which means that state regulations will not survive unless narrowly tailored to achievePage 336 compelling interests.²⁹ In the context of marriage, however, the Court often employs only rationality review.³⁰ Rather than striking down laws that deter, encourage, and regulate marriage, the Court has commonly sustained them.³¹ Government thus continues to regulate marriage in all sorts of ways. Prohibitions on polygamy³² and incest³³ are universal. Filing fees, age restrictions, and waiting periods are not uncommon.³⁴ None of these restrictions are narrowly tailored to achieve compelling interests,³⁵ and yet all are constitutional. Simply put, the Supreme Court's marriage precedents do not fit into an understandable constitutional model.

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Casting adoption as a fundamental right risks a similar fate. Like the right to marry, adoption would likely end up as a fundamental-yet empty-right. States would still be free to regulate the adoption process, and courts would have little guidance on when (and when not) to intervene. As a result, federal courts could find themselves blindly engineering the American adoptive family.

The better path, I believe, is to focus equality principles on adults, rather than attempt assignments of fundamental rights to children. Justice Jackson explained the constitutional allure of the Equal Protection Clause:

Invalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable.

Invocation of the [E]qual [Protection [C]lause, on the other hand, does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact. I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of the regulation. . . .

. . . Hence, for my part, I am more receptive to attack on local ordinances for denial of equal protection than for denial of due process . . . ,³⁶

Loving v. Virginia,³⁷ in particular, is best understood as an equality case. Virginia's anti-miscegenation statute was unconstitutional because itPage 338 discriminated based on race, not because it interfered with marriage.³⁸ Similarly, adoption laws should not be re-written by courts, but should be measured by traditional equality principles. Those that discriminate against "suspect" and "quasi-suspect" classes are presumably invalid.³⁹ States are free to extend⁴⁰ or retract their adoption benefits, but the end result must be equal.⁴¹

Of course, my assumption is that sexual orientation will someday be judged as a suspect (or quasi-suspect) class. Until that happens, there can be no assurance that laws discriminating against gays and lesbians violate equal protection. The Supreme Court, for its part, has sent mixed signals. In Romer v. Evans,⁴² the Court concluded only that Colorado's voter initiative (repealing several cities' anti-discrimination measures) ran afoul of equal protection;⁴³ it did not convincingly explain why. Lawrence v. Texas,⁴⁴ which invalidated Texas's criminal prohibition on homosexual sodomy,⁴⁵ used the Due Process Clause rather than equal protection.⁴⁶

In contrast to these successes, the Supreme Court, in Boy Scouts of America v. Dale⁴⁷ ruled that private groups, like the Boy Scouts, have a constitutional right to discriminate based on sexual orientation.⁴⁸ Because the Court has been far more solicitous of race-based⁴⁹ and gender-based⁵⁰Page 339 claims in related associational contexts, it appears that the Court may not yet be ready to elevate sexual orientation to suspect or quasi-suspect status. But even so, the Romer Court's equal protection-guided "rationality-with-bite" approach⁵¹ would seem to offer a better challenge to § 63.042(3) than an argument grounded in fundamental rights.⁵²

For constitutional eggheads (like me) who seek to ground constitutional decisions in constitutional theory, it would seem that the most obvious anchor for striking down homophobic laws is the First Amendment.⁵³ If the lone reason for punishing homosexuals is, "God says so,"⁵⁴ the Establishment Clause must surely be violated.⁵⁵ Even if onePage 340 concludes that government has some constitutional space to advance mono-theism,⁵⁶ the government has no room to prefer one religion's tenetsPage 341 over another's.⁵⁷ Because "[t]he first line of defense used by those who want to condemn homosexuality appears now to...