No. 01-16723
D. C. Docket No. 99-10058-CV-JLK
next friend ofJohn Doe and John Roe,
minor children,
SERVICES, (formerly H.R.S.),
Department ofChildren and Family Services,
Attorney General of the State of Florida,
ROBERT PAPPAS, District Administrator, District X
of Florida Department of Children and Family
Appeal from the United States District Court
for the Southern District of Florida
(January 28, 2004)
Before BIRCH, CARNES and HUG*, Circuit Judges.
BIRCH, Circuit Judge:
In this appeal, we decide the states' rights issue ofwhether Florida Statute
§ 63.042(3), which prevents adoption by practicing homosexuals, is constitutional
as enacted by the Florida legislature and as subsequently enforced. The district
court granted summary judgment to Florida over an equal protection and due
process challenge by homosexual persons desiring to adopt. We AFFIRM.
* Honorable Procter Hug, Jr., United States Circuit Judge for the Ninth Circuit, sitting by
A. The Challenged Florida Statute
Since 1977, Florida's adoption law has contained a codified prohibition on
adoption by any "homosexual" person. 1977 Fla. Laws, ch. 77-140, § 1, Fla. Stat.
§ 63.042(3) (2002).1 For purposes of this statute, Florida courts have defined the
term "homosexual" as being "limited to applicants who are known to engage in
current, voluntary homosexual activity," thus drawing "a distinction between
homosexual orientation and homosexual activity." Fla. Dep't ofHealth & Rehab.
Servs. v. Cox, 627 So. 2d 1210, 1215 (Fla. Dist. Ct. App. 1993), aff'd in relevant
p~,656 So. 2d 902, 903 (Fla. 1995). During the past twelve years, several
legislative bills have attempted to repeal the statute,2 and three separate legal
challenges to it have been filed in the Florida courts.3 To date, no attempt to
overturn the provision has succeeded. We now consider the most recent challenge
to the statute.
'Fla. Stat. § 63.042(3) provides: "No person eligible to adopt under this statute may adopt if that
person is a homosexual."
2 S.B. 752, Reg. Sess. (Fla. 1995); H.B. 349, Reg. Sess. (Fla. 1995); H.B. 1461, Reg. Sess. (Fla.
~See Cox, 627 So. 2d at 1210, aff'd in part, rev'd in part, and remanded, 656 So. 2d 902 (Fla.
1995); Amer v. Johnson, 4 Fla. L. Weekly Supp. 854b (Fla. Cir. Ct. 1997); Seebol v. Farie, 16
Fla. L. Weekly C52 (Fla. Cir. Ct. 1991).
B. The Litigants
Six plaintiffs-appellants bring this case. The first, Steven Lofton, is a
registered pediatric nurse who has raised from infancy three Florida foster
children, each of whom tested positive for HIV at birth. By all accounts, Lofton's
efforts in caring for these children have been exemplary, and his story has been
chronicled in dozens ofnews stories and editorials as well as on national
television.4 We confine our discussion of that story to those facts relevant to the
legal issues before us and properly before us in the record. John Doe, also named
as a plaintiff-appellant in this litigation, was born on 29 April 1991. Testing
positive at birth for HIV and cocaine, Doe immediately entered the Florida foster
care system. Shortly thereafter, Children's Home Society, a private agency, placed
~~ Jay Weaver, Gays to Test Florida Law on Adoptions, Miami Herald, March 4, 2003, at
Fl; Advocates Say Keep Family at Center of GayAdoption Battle, Miami Times, Apr. 2, 2002, at
7A; Bruce Alpert, Debate Over Ban on GayAdoptions Grows, Times-Picayune, Mar. 30, 2002,
at Nat'l 1; Editorial, Adoption by Loving Gay Parents, St. Petersburg Times, Mar. 25, 2002, at
1 OA; Robert Scheer, Editorial, Kids Get Left in the Lurch When the 'Values' Cops Arrive, L.A.

Times, Mar. 19, 2002, at Metro 13; Dana Canedy, Groups Fight Florida ~ Ban on Gay
N.Y. Times, Mar. 15, 2002, at Al 2; Good Morning America: Steve Lofton and Roger
Croteau Discuss Rights of Gay Couples to Adopt Children
(ABC television broadcast, Mar. 14,
2002); World News Tonight with PeterJennings: Gay Couple ~ Struggle to Adopt Foster
Children in Florida
(ABC television broadcast, Mar. 14, 2002); Primetime Thursday: Rosie 's
(ABC television broadcast, Mar. 14, 2002); Julie Sullivan, Oregon Family at Vortex ofBan
on Gay Adoption,
Oregonian, Mar. 14, 2002, at Al; Jeanne Malmgren, Gay Adoption in Florida:
It ~ Out ofthe Question,
St. Petersburg Times, Mar. 14, 2002, at 1D; Andres Viglucci, Parents in
Their Hearts, They SeekApproval ofthe Law,
Miami Herald, Aug. 31, 2001, at 6A; Tamar
Lewin, Court Backs Florida Ban on Adoption by Gays, N.Y. Times, Aug. 31, 2001, at A14; Gail
Epstein Nieves, Foster Parent Challenges State Ban on Gay Adoption, Miami Herald, July 21,
2001, at 1B; David Crary, Gay Adoption Ban in Florida Faces Court Test, L.A. Times, June 17,
2001, at A14; All Things Considered:ACLU Plans Lawsuit AgainstFlorida to Change a Law
that Prohibits the Adoption of Children by Gay Men and Lesbians
(National Public Radio
broadcast, May 26, 1999).
Doe in foster care with Lofton, who has extensive experience treating HIV
patients. At eighteen months, Doe sero-reverted and has since tested HIV
negative. In September of 1994, Lofton filed an application to adopt Doe but
refused to answer the application's inquiry about his sexual preference and also
failed to disclose Roger Croteau, his cohabitating partner, as a member ofhis
household. After Lofton refused requests from the Department of Children and
Families ("DCF") to supply the missing information, his application was rejected
pursuant to the homosexual adoption provision. Shortly thereafter, in early 1995,
William E. Adams, Jr., a professor oflaw who had participated in one of the
previous legal challenges to Fla. Stat. § 63.042(3), wrote to the American Civil
Liberties Union ("ACLU") and informed it that Lofton and Croteau would make
"excellent test plaintiffs." R3-108 at 3. Two years later, in light of the length of
Doe's stay in Lofton's household, DCF offered Lofton the compromise of
becoming Doe's legal guardian. This arrangement would have allowed Doe to
leave the foster care system and DCF supervision. However, because it would
have cost Lofton over $300 a month in lost foster care subsidies and would have
jeopardized Doe's Medicaid coverage, Lofton declined the guardianship option
unless it was an interim stage toward adoption. Under Florida law, DCF could not
accommodate this condition, and the present litigation ensued.
Plaintiff-appellant Douglas E. Houghton, Jr., is a clinical nurse specialist and
legal guardian ofplaintiff-appellant John Roe, who is eleven years old. Houghton
has been Roe's caretaker since 1996 when Roe's biological father, suffering from
alcohol abuse and frequent unemployment, voluntarily left Roe, then four years
old, with Houghton. That same year, Houghton was appointed co-guardian of Roe
along with one Robert Obeso (who otherwise has no involvement in this case).
After Roe's biological father consented to termination of his parental rights,
Houghton attempted to adopt Roe. Because of Houghton's homosexuality,
however, he did not receive a favorable preliminary home study evaluation, which
precluded him from filing the necessary adoption petition in state circuit court.
Fla. Stat. §~63.092(3), 63.112(2)(b).
Plaintiff-appellants Wayne Lame Smith and Daniel Skahen, an attorney and
real estate broker residing together in Key West, became licensed DCF foster
parents after completing a requisite ten-week course in January of 2000. Since
then, they have cared for three foster children, none of whom has been available
for adoption. On 1 May 2000, Smith and Skahen submitted applications with DCF
to serve as adoptive parents.5 On their adoption applications, both Smith and
Skahen indicated that they are homosexuals. On 15 May 2000, they received

~Unlike Lofton and Houghton, neither ofwhose cohabitating partners seeks to join their
respective adoptions, Smith and Skahen seek to adopt jointly.
notices from DCF stating that their applications had been denied because of their
C. Procedural History
Appellants filed suit in the United States District Court for the Southern
District ofFlorida and named as defendants Kathleen A. Kearney and Charles
Auslander in their respective official capacities as DCF Secretary and DCF District
Administrator for Dade and Monroe Counties. Their complaint alleged that the
statute violates appellants' fundamental rights and the principles of equal
protection. Jointly, appellants asked the district court to declare Fla. Stat.
§ 63.042(3) unconstitutional and to enjoin its enforcement. Appellants also sought
class certification on behalf oftwo purported classes: all similarly situated adults
and all similarly situated children. The district court denied the request for class
certification and granted summary judgment in favor of the state on all counts,
thereby upholding the statute. It is from this judgment that appellants now appeal.
Appellants assert three constitutional arguments on appeal. First, appellants
argue that the statute violates Lofton, Houghton, Doe, and Roe's rights to familial
privacy, intimate association, and family integrity under the Due Process Clause of
the Fourteenth Amendment. Second, appellants argue that the Supreme Court's
recent decision in Lawrence v. Texas, 539 U.S. , 123 5. Ct. 2472 (2003),
recognized a fundamental right to private sexual intimacy and that the Florida
statute, by disallowing adoption by individuals who engage in homosexual activity,
impermissibly burdens the exercise of this right. Third, appellants allege that, by
categorically prohibiting only homosexual persons from adopting children, the
statute violates the Equal Protection Clause ofthe Fourteenth Amendment. Each
of these challenges raises questions of first impression in this circuit.
A. Summary Judgment Standard
We review a summary judgment decision de novo and apply the same legal
standard used by the district court. Nat'l Parks Conservation Ass'n v. Norton, 324
F.3d 1229, 1236 (11th Cir. 2003). In conducting our review, we view all evidence
and factual inferences in the light most favorable to the nonmoving party. Id.
Summary judgment is proper where "there is no genuine issue as to any material
fact" and "the moving party is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(c). However, "the mere existence ofsome alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106
S. Ct. 2505, 2510 (1986). Only factual disputes that are material under the
substantive law governing the case will preclude entry of summary judgment. Id.
B. Florida's Adoption Scheme
Appellants' challenge cannot be viewed apart from the context in which it
arises. Under Florida law, "adoption is not a right; it is a statutory privilege."
Cox, 627 So. 2d at 1216. Unlike biological parentage, which precedes and
transcends formal recognition by the state, adoption is wholly a creature of the
state. Cf Smith v. Org. ofFoster Families for Equal. & Reform, 431 U.S. 816,
845, 97 S. Ct. 2094, 2110 (1977) (noting that, unlike the natural family, which has
"its origins entirely apart from the power of the State," the foster parent-child
relationship "has its source in state law and contractual arrangements"); Lindley v.
Sullivan, 889 F.2d 124, 131 (7th Cir. 1989) ("Because ofits statutory basis,
adoption differs from natural procreation in a most important and striking way.").
In formulating its adoption policies and procedures, the State ofFlorida acts
in the protective and provisional role of in loco parentis for those children who,
because of various circumstances, have become wards ofthe state. Thus, adoption
law is unlike criminal law, for example, where the paramount substantive concern
is not intruding on individuals' liberty interests, ~ ~ Lawrence, 539 U.S.

123 S. Ct. 2472; Roe v. Wade, 410 U.S. 113, 93 5. Ct. 705 (1973), and the
paramount procedural imperative is ensuring due process and fairness, ~
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); Gideon v. Wainwright, 372 U.S.
335, 83 S. Ct. 792 (1963). Adoption is also distinct from such contexts as
government-benefit eligibility schemes or access to a public forum, where equality
of treatment is the primary concern. See, ~ Rosenberger v. Rector & Visitors of
Univ. ofVa., 515 U.S. 819, 115 S. Ct. 2510 (1995); Adarand Constructors, Inc. v.
Pena, 515 U.S. 200, 115 5. Ct. 2097 (1995). By contrast, in the adoption context,
the state's overriding interest is the best interests of the children whom it is seeking
to place with adoptive families. In re Adoption of H.Y.T., 458 So. 2d 1127, 1128
(Fla. 1984) (noting that, in Florida adoption proceedings, "the court's primary duty
is to serve the best interests of the child-the object of the proceeding").6 Florida,
acting parens patriae for children who have lost their natural parents, bears the high
duty of determining what adoptive home environments will best serve all aspects
of the child's growth and development.
Because of the primacy of the welfare of the child, the state can make
classifications for adoption purposes that would be constitutionally suspect in
many other arenas. For example, Florida law requires that, in order to adopt any
child other than a special needs child, an individual's primary residence and place
6 See also Rushing v. Bosse, 652 So. 2d 869, 873 (Fla. Dist. Ct. App. 1995) ("Adoption
proceedings are unique. In an adoption proceeding, the intended beneficiary ofthe proceeding is
the child to be adopted."); Amer, 4 Fla. L. Weekly Supp. 854b (noting that persons seeking to
adopt "are merely requesting that the state make a decision to investigate the candidate's
background to determine if their environment would serve the best interests ofa child" and that
"[i]n each adoption proceeding, the child is the intended beneficiarywhose interest is afforded
the utmost consideration").
of employment must be located in Florida. Fla. Stat. § 63.185. In screening
adoption applicants, Florida considers such factors as physical and mental health,
income and financial status, duration of marriage, housing, and neighborhood,
among others. Fla. Admin. Code Ann. r. 65C-l6.005(3) (2003). Similarly, Florida
gives preference to candidates who demonstrate a commitment to "value, respect,
appreciate, and educate the child regarding his or her racial and ethnic heritage."
Id. Moreover, prospective adoptive parents are required to sign an affidavit of
good moral character. j4~Many ofthese preferences and requirements, if
employed outside the adoption arena, would be unlikely to withstand constitutional
scrutiny. See, ~ Troxel v. Granville, 530 U.S. 57, 68, 120 5. Ct. 2054, 2061
(2000) (recognizing that, absent neglect or abuse, the state may not "inject itself
into the private realm of the family to further question the ability of that parent to
make the best decisions concerning the rearing ofthat parent's children"); Supreme
Court of Va. v. Friedman, 487 U.S. 59, 70, 108 5. Ct. 2260, 2267 (1988)
(invalidating as unconstitutional Virginia's residency requirement for waive-in
admission to the state bar).
The decision to adopt a child is not a private one, but a public act. Cox, 627
So. 2d at 1216. At a minimum, would-be adoptive parents are asking the state to
confer official recognition-and, consequently, the highest level of constitutional
insulation from subsequent state interference, see Troxel, 530 U.S. at 65, 120 S. Ct.
at 2060-on a relationship where there exists no natural filial bond. In many
cases, they also are asking the state to entrust into their permanent care a child for
whom the state is currently serving as loco parentis. In doing so, these
prospective adoptive parents are electing to open their homes and their private
lives to close scrutiny by the state.7 Florida's adoption application requires

information on a variety ofprivate matters, including an applicant's physical and
psychiatric medical history, previous marriages, arrest record, financial status, and
educational history. In this regard, Florida's adoption scheme is like any "complex
social welfare system that necessarily deals with the intimacies of family life."
Bowen v. Gilliard, 483 U.S. 587, 602, 107 5. Ct. 3008, 3017-18 (1987) (quoting
Califano v. Jobst, 434 U.S. 47, 55 n.l 1, 98 5. Ct. 95, 100 n.l 1(1977)).
Accordingly, such intrusions into private family matters are on a different
constitutional plane than those that "seek[] to foist orthodoxy on the unwilling by
banning or criminally prosecuting" nonconformity. Califano, 434 U.S. at 55 n.l 1,
98 S. Ct. at 100 n.ll; cf Lindley, 889 F.2d at 131 (declining to find a privacy
~See also COX, 627 So. 2d at 1216 ("To make decisions that accord with the best interests of
children, government agencies and courts are clearly entitled to conduct extensive examinations
into the background of prospective parents."); In re Op. ofthe Justices, 530 A.2d 21, 27 (N.H.
1987) ("[W]e note that no intrusion by the state in this context is possible unless and until an
individual invites it by voluntarily seeking to adopt.... Only then would the state pose
questions about the individual's private life, as the agent responsible for preserving and
furthering the welfare ofits children.").
interest in adopting a child because state law "requires adopters to submit their
personal lives to intensive scrutiny before the adoption may be approved").
In short, a person who seeks to adopt is asking the state to conduct an
examination into his or her background and to make a determination as to the best
interests of a child in need of adoption. In doing so, the state's overriding interest
is not providing individuals the opportunity to become parents, but rather
identifying those individuals whom it deems most capable of parenting adoptive
children and providing them with a secure family environment. Indicative ofthe
strength of the state's interest-indeed duty-in this context is the fact that
appellants have not cited to us, nor have we found, a single precedent in which the
Supreme Court or one of our sister circuits has sustained a constitutional challenge
to ai~adoption scheme or practice by any individual other than a natural parent, and
even many challenges by natural parents have failed. See, ~g, Lehr v. Robertson,
463 U.S. 248, 103 S. Ct. 2985 (1983); Quilloin v. Walcott, 434 U.S. 246, 98 5. Ct.
549 (1978). Of course, despite their highly sensitive nature, adoption schemes are
by no means immune from constitutional scrutiny, and we now consider the
constitutionality of the Florida statute. See, ~ Caban v. Mohammed, 441 U.S.
380, 99 S. Ct. 1760 (1979) (invalidating on equal protection grounds a state law
permitting unwed mothers, but not unwed fathers, to block adoption oftheir child
simply by withholding consent).
C. Appellants' Due Process Challenges
1. Fundamental Right to "Family Integrity"
Neither party disputes that there is no fundamental right to adopt, nor any
fundamental right to be adopted. R4-124 at 10 (Joint Pre-trial Stipulation); see
also Mullins v. Oregon, 57 F.3d 789, 794 (9th Cir. 1995) ("[W]hatever claim a
prospective adoptive parent may have to a child, we are certain that it does not rise
to the level of a fundamental liberty interest."); Lindley, 889 F.2d at 131 ("[W]e
are constrained to conclude that there is no fundamental right to adopt."). Both
parties likewise agree that adoption is a privilege created by statute and not by
common law. R4-124 at 10. Because there is no fundamental right to adopt or to
be adopted, it follows that there can be no fundamental right to apply for adoption.
Nevertheless, appellants argue that, by prohibiting homosexual adoption, the
state is refusing to recognize and protect constitutionally protected parent-child
relationships between Lofton and Doe and between Houghton and Roe.8 Noting
that the Supreme Court has identified "the interest of parents in the care, custody,

and control oftheir children" as "perhaps the oldest ofthe fundamental liberty
interests recognized by this Court," Troxel, 530 U.S. at 65, 120 5. Ct. at 2060,
appellants argue that they are entitled to a similar constitutional liberty interest
8 Because Smith and Skahen have no specific foster child or legal ward whom they are seeking to
adopt, they do not, and need not, join in these arguments.
because they share deeply loving emotional bonds that are as close as those
between a natural parent and child.9 They further contend that this liberty interest
is significantly burdened by the Florida statute, which prevents them from
obtaining permanency in their relationships and creates uncertainty about the
future integrity oftheir families. Only by being given the opportunity to adopt,
appellants assert, will they be able to protect their alleged right to "family
Although the text ofthe Constitution contains no reference to familial or
parental rights, Supreme Court precedent has long recognized that "the Due
Process Clause ofthe Fourteenth Amendment protects the fundamental right of
parents to make decisions concerning the care, custody, and control oftheir
children." Id. at 66, 120 S. Ct. at 2060. A corollary to this right is the "private
realm of family life which the state cannot enter that has been afforded both
substantive and procedural protection." Smith v. Org. of Foster Families for
Equal. & Reform, 431 U.S. 816, 842,97 S. Ct. 2094, 2108 (1977) (internal citation
~On appeal, appellants argue that the district court erred in not allowing them to show that they
have a constitutionally protected family relationship. The shortcoming in appellants' argument,
however, is not factual, but legal. As we explain, appellants' emotional ties, regardless how
strong and intense, do not by themselves create the constitutional rights appellants claim to have.
10 As part ofthis argument, appellants assert that the state is denying them access to the panoply
ofconstitutional and statutory protections that accompany legal adoption solely on the basis of
their homosexuality. This is a restatement oftheirequal protection argument, which we address
in Section 11.D.
and quotation marks omitted). Historically, the Court's family- and parental-rights
holdings have involved biological families. See, ~ Troxel, 530 U.S. 57, 120 S.
Ct. 2054 (2000); Wisconsin v. Yoder, 406 U.S. 205, 92 5. Ct. 1526 (1972); Stanley
v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972); Pierce v. Soc'y of Sisters, 268 U.S.
510,45 S. Ct. 571 (1925); Meyer v. Nebraska, 262 U.S. 390,43 5. Ct. 625 (1923).
The Court itself has noted that "the usual understanding of 'family' implies
biological relationships, and most decisions treating the relation between parent
and child have stressed this element." Smith, 431 U.S. at 843, 97 S. Ct. at 2109.
Appellants, however, seize on a few lines of dicta from Smith, in which the Court
acknowledged that "biological relationships are not [the] exclusive determination
ofthe existence ofa family," id., and noted that "[a]doption, for instance, is
recognized as the legal equivalent of biological parenthood," at 844 n.5 1, 97 S.
Ct. at 2109 & n.5 1. Extrapolating from Smith, appellants argue that parental and
familial rights should be extended to individuals such as foster parents and legal
guardians and that the touchstone of this liberty interest is not biological ties or
official legal recognition, but the emotional bond that develops between and
among individuals as a result of shared daily life,
We do not read Smith so broadly. In Smith, the Court considered whether
the appellee foster families possessed a constitutional liberty interest in "the
integrity of their family unit" such that the state could not disrupt the families
without procedural due process. jçj~at 842, 97 5. Ct at 2108. Although the Court
found it unnecessary to resolve that question, Justice Brennan, writing for the
majority, did note that the importance of familial relationships stems not merely
from blood relationships, but also from "the emotional attachments that derive

from the intimacy of daily association." Id. at 844, 97 S. Ct. at 2109. The Smith
Court went on, however, to discuss the "important distinctions between the foster
family and the natural family," particularly the fact that foster families have their
genesis in state law. Id. at 845, 97 5. Ct. at 2110. The Court stressed that the
parameters ofwhatever potential liberty interest such families might possess would
be defined by state law and the justifiable expectations it created. Id. at 845-46, 97
S. Ct. at 2110. The Court found that the expectations created by New York law--
which accorded only limited recognition to foster families--supportedonly "the
most limited constitutional 'liberty' in the foster family." Id. at 846, 97 5. Ct. at
2110. Basing its holding on other grounds, the Court concluded that the
procedures provided under New York law were "adequate to protect whatever
liberty interest appellees may have." j~at 856, 97 S. Ct. at 2115.
In Drummond v. Fulton County Dep't of Family & Children's Servs., the
former Fifth Circuit construed Smith's dicta in considering due process and equal
protection claims brought by white foster parents challenging Georgia's refusal to
permit them to adopt their mixed-race foster child, whom they had parented for
two years. 563 F.2d 1200, 1206 (5th Cir. 1977) (en banc), cert. denied, 437 U.S.
910, 98 S. Ct. 3103 (1978).h1 Arguing that theirs was a "psychological family," the
foster parents advanced a theory identical to that ofpresent appellants:
Plaintiffs maintain that during the period Timmy lived with them mutual
feelings oflove and dependence developed which are analogous to those
found in most biological families. By so characterizing their home situation
they seek to come within the protection which courts have afforded to the
family unit. They assert that their relationship to Timmy is part of the
familial right to privacy which is a protected interest under the Fourteenth
Amendment. As the "psychological parents" of Timmy, they claim
entitlement to the parental rights referred to in numerous decisions.
Id. at 1206 (internal citation omitted). Relying on Smith, the Drummond court
rejected plaintiffs' argument. Examining state law to determine the extent of
plaintiffs' constitutional interests, the court found that "[t]here is no basis in the
Georgia law, which creates the foster relationship, for a justifiable expectation that
the relationship will be left undisturbed." j4. at 1207. The Drummond court
The very fact that the relationship before us is a creature of state law, as well
as the fact that it has never been recognized as equivalent to either the
natural family or the adoptive family by any court, demonstrates that it is not
a protected liberty interest, but an interest limited by the very laws which
create it.
Id.; accord Mullins, 57 F.3d at 794 (holding that biological grandparents possessed
no liberty interest in adopting two of their grandchildren who were available for
"In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en bane), we adopted as binding
precedent all decisions ofthe former Fifth Circuit rendered prior to 1 October 1981.
adoption); Procopio v. Johnson, 994 F.2d 325, 329 (7th Cir. 1993) (relying on
Smith and holding that "[n]otwithstanding the preference that state law grants to
foster families seeking to adopt their foster children, this priority does not rise to
the level of an entitlement or expectancy").
Neither Smith nor Drummond, however, categorically foreclosed the
possibility that, under exceptional circumstances, a foster family could possess
some degree of constitutional protection if state law created a "justifiable
expectation" of family unit permanency. Drummond, 563 F.2d at 1207. Here, we
find that under Florida law neither a foster parent nor a legal guardian could have a
justifiable expectation ofa permanent relationship with his or her child free from
state oversight or intervention. Under Florida law, foster care is designed to be a
short-term arrangement while the state attempts to find a permanent adoptive

home.'2 For instance, Florida law permits foster care as a "permanency option"
only for children at least fourteen years of age, Fla. Stat. § 39.623(1), and DCF
may remove a foster child anytime that it believes it to be in the child's best
interests, id. § 409.l65(3)(f). Similarly, legal guardians in Florida are subject to
ongoing judicial oversight, including the duty to file annual guardianship reports
12 Although there are undoubtedly situations in which foster care becomes a permanent
placement, "it is hard to 'believe that such breakdowns of the. . . system must be protected or
forever frozen in their existence by the Due Process Clause ofthe Fourteenth Amendment."
Drummond v. Fulton County Dep't of Family & Children's Servs., 563 F.2d 1200, 1207 (5th
Cir. 1977) (quoting Smith v. Org. ofFoster Families for Equal. & Reform, 431 U.S. 816, 862, 97
S. Ct. 2094, 2119 (1977) (Stewart, J., concurring)).
and annual review by the appointing court, id. § § 744.361-372, and can be
removed for a wide variety ofreasons, id. § 744.474 (permitting removal of a
guardian for such causes as incapacity, illness, substance abuse, conviction of a
felony, failure to file annual guardianship reports, and failure to fulfill guardianship
education requirements). In both cases, the state is not interfering with natural
family units that exist independent of its power, but is regulating ones created by it.
Lofton and Houghton entered into relationships to be a foster parent and legal
guardian, respectively, with an implicit understanding that these relationships
would not be immune from state oversight and would be permitted to continue
only upon state approval. The emotional connections between Lofton and his
foster child and between Houghton and his ward originate in arrangements that
have been subject to state oversight from the outset. We conclude that Lofton,
Doe, Houghton, and Roe could have no justifiable expectation of permanency in
their relationships. Nor could Lofton and Houghton have developed expectations
that they would be allowed to adopt, in light ofthe adoption provision itself.
Even if Florida law did create an expectation ofpermanency, appellants
misconstrue the nature of the liberty interest that it would confer upon them. The
resulting liberty interest at most would provide procedural due process protection
in the event the state were to attempt to remove Doe or Roe. See Smith, 431 U.S.
at 845, 97 5. Ct. at 2110 (considering whether foster families' asserted liberty
interest in remaining intact warranted greater procedural safeguards than were
currently provided under New York law); Drummond, 563 F.2d at 1204
(considering, if foster family possesses constitutional rights, "how much
procedural protection is required in order to safeguard them?"). Such a procedural
right does not translate, however, into a substantive right to be free from state
inference. Nor does it create an affirmative right to be accorded official
recognition as "parent" and "child." Cf Harris v. McRae, 448 U.S. 297, 100 S. Ct.
2671 (1980) (holding that the government's refusal to subsidize the exercise of a
constitutional right does not constitute a violation ofthat right); Webster v.
Reprod. Health Servs., 492 U.S. 490, 109 5. Ct. 3040 (1989) (same); Mullins, 57
F.3d at 794 ("A negative right to be free of governmental interference in an already
existing familial relationship does not translate into an affirmative right to create
an entirely new family unit out of whole cloth."). In sum, Florida's statute by itself
poses no threat to whatever hypothetical constitutional protection foster families
and guardian-ward relationships may possess.
We conclude that appellants' right-to-family-integrity argument fails to state
a claim. There is no precedent for appellants' novel proposition that long-term
foster care arrangements and guardianships are entitled to constitutional protection
akin to that accorded to natural and adoptive families. Moreover, we decline
appellants' invitation to recognize a new fundamental right to family integrity for
groups of individuals who have formed deeply loving and interdependent

relationships. Under appellants' theory, any collection ofindividuals living
together and enjoying strong emotional bonds could claim a right to legal
recognition oftheir family unit, and every removal of a child from a long-term
foster care placement--orsimply the state's failure to give long-term foster parents
the opportunity to adopt--wouldgive rise to a constitutional claim. Such an
expansion ofthe venerable right ofparental control would well exceed our judicial
mandate as a lower federal court. See Collins v. City of Harker Heights, 503 U.S.
115, 125, 112 5. Ct. 1061, 1068 (1992) (noting that the doctrine ofjudicial restraint
requires even the Supreme Court to exercise "the utmost care" whenever asked to
break new ground in the field of fundamental rights).
2. Fundamental Right to "Private Sexual Intimacy"
Laws that burden the exercise of a fundamental right require strict scrutiny
and are sustained only if narrowly tailored to further a compelling government
interest. See, ~ Zablocki v. Redhail, 434 U.S. 374, 388, 98 S. Ct. 673, 682
(1978); Shapiro v. Thompson, 394 U.S. 618, 634, 89 5. Ct. 1322, 1331 (1969).
Appellants argue that the Supreme Court's recent decision in Lawrence v. Texas,
539 U.S. , 123 5. Ct. 2472 (2003), which struck down Texas's sodomy statute,
identified a hitherto unarticulated fundamental right to private sexual intimacy.
They contend that the Florida statute, by disallowing adoption to any individual
who chooses to engage in homosexual conduct, impermissibly burdens the exercise
of this right.
We begin with the threshold question of whether Lawrence identified a new
fundamental right to private sexual intimacy. Lawrence's holding was that
substantive due process does not permit a state to impose a criminal prohibition on
private consensual homosexual conduct. The effect of this holding was to establish
a greater respect than previously existed in the law for the right of consenting
adults to engage in private sexual conduct. 539 U.S. at , 123 S. Ct. at 2478.
Nowhere, however, did the Court characterize this right as "fundamental." Cf id.
at , 123 5. Ct. at 2488 (Scalia, J., dissenting) (observing that "nowhere does the
Court's opinion declare that homosexual sodomy is a 'fundamental right' under the
Due Process Clause"). Nor did the Court locate this right directly in the
Constitution, but instead treated it as the by-product of several different
constitutional principles and liberty interests.'3
13 The Court's language suggested that this right emerges from the confluence of several factors,
namely, (1) the broad concepts ofliberty located in the Due Process Clause, ~ ~ Lawrence
v. Texas, 539 U.S. , ,123 S. Ct. 2472, 2475 (2003) ("Liberty protects the person from
unwarranted government intrusions into a dwelling or other private places."); id. ("The instant
case involves liberty of the person both in its spatial and more transcendent dimensions."); id. at
123 S. Ct. at 2484 ("{T]here is a realm of personal liberty which the government may not
enter.") (citation omitted); (2) a cluster ofspecific constitutional rights closely related to sexual
intimacy, id. at , 123 S. Ct. at 2481 (noting the constitutional protection of decisions relating
to sexual intimacy, including rights involving "marriage, procreation, contraception, family
relationships, child rearing, and education"); and (3) Texas's failure to offer a rational basis for
its statute, id. at , 123 S. Ct. at 2484 ("The Texas statute furthers no legitimate state interest
which canjustify its intrusion into the personal and private life ofthe individual.").
We are particularly hesitant to infer a new fundamental liberty interest from
an opinion whose language and reasoning are inconsistent with standard
fundamental-rights analysis. The Court has noted that it must "exercise the utmost
care whenever [it is] asked to break new ground" in the field of fundamental rights,
Washington v. Glucksberg, 521 U.S. 702, 720, 117 5. Ct. 2258, 2268 (1997)
(citation omitted), which is precisely what the Lawrence petitioners and their amici
curiae had asked the Court to do.14 That the Court declined the invitation is

apparent from the absence of the "two primary features" of fundamental-rights
analysis in its opinion. Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2268. First, the
Lawrence opinion contains virtually no inquiry into the question ofwhether the
petitioners' asserted right is one of "those fundamental rights and liberties which
are, objectively, deeply rooted in this Nation's history and tradition and implicit in
the concept ofordered liberty, such that neither liberty nor justice would exist if
they were sacrificed." Id. at 720-21, 117 5. Ct. at 2268 (internal citations and
quotation marks omitted).'5 Second, the opinion notably never provides the
'~See Tr. ofOral Argument, No. 02-102, at *4; Br. ofthe ACLU et al. as Amici Curiae, No. 02-
102, at *11.25
15 The Court did devote considerable attention to history and tradition. This examination,
however, was for the purpose of challenging the historical premises relied upon by the Bowers
Court, and it focused on whether there has been a history ofenacting, and regularly enforcing,
laws specifically directed at private homosexual conduct. Lawrence, 539 U.S. at , 123 5. Ct.
at 2478-81. Notably absent from this discussion was the critical inquiry for purposes of
fundamental-rights analysis: whether there has been a deeply rooted tradition and history of
protecting the right to homosexual sodomy or the right to private sexual intimacy.
"careful description' of the asserted fundamental liberty interest" that is to
accompany fundamental-rights analysis. Id. at 721, 117 5. Ct. at 2268 (citation
omitted); see also Reno v. Flores, 507 U.S. 292, 302, 113 5. Ct. 1439, 1447 (1993)
("Substantive due process' analysis must begin with a careful description ofthe
asserted right. . . ."). Rather, the constitutional liberty interests on which the Court
relied were invoked, not with "careful description," but with sweeping generality.
See, ~ Lawrence, 539 U.S. , 123 5. Ct. at 2475 ("Liberty protects the person
from unwarranted government intrusions into a dwelling or other private places.");
id. ("The instant case involves liberty of the person both in its spatial and more
transcendent dimensions."); id. at , 123 S. Ct. at 2484 ("[T]here is a realm of
personal liberty which the government may not enter.") (citation omitted). Most
significant, however, is the fact that the Lawrence Court never applied strict
scrutiny, the proper standard when fundamental rights are implicated, but instead
invalidated the Texas statute on rational-basis grounds, holding that it "furthers no
legitimate state interest which can justify its intrusion into the personal and private
life ofthe individual." Id. at , 123 5. Ct. at 2484; see also id. at , 123 5. Ct.
at 2488 (Scalia, J., dissenting) (observing that the majority opinion did not "subject
the Texas law to the standard of review that would be appropriate (strict scrutiny)
ifhomosexual sodomy were a 'fundamental right").
We conclude that it is a strained and ultimately incorrect reading of
Lawrence to interpret it to announce a new fundamental right. Accordingly, we
need not resolve the second prong of appellants' fundamental-rights argument:
whether exclusion from the statutory privilege ofadoption because of appellants'
sexual conduct creates an impermissible burden on the exercise oftheir asserted
right to private sexual intimacy. Cf Lyng v. Castillo, 477 U.S. 635, 638, 106 S.
Ct. 2727, 2729 (1986) (only classifications that "directly and substantially'
interfere" with a fundamental right constitute an impermissible "burden") (citation
Moreover, the holding ofLawrence does not control the present case. Apart
from the shared homosexuality component, there are marked differences in the
facts of the two cases. The Court itself stressed the limited factual situation it was
addressing in Lawrence:
The present case does not involve minors. It does not involve persons who
might be injured or coerced or who are situated in relationships where
consent might not easily be refused. It does not involve public conduct or
prostitution. It does not involve whether the government must give formal

recognition to any relationship that homosexual persons seek to enter. The
case does involve two adults who, with full and mutual consent from each
other, engaged in sexual practices common to a homosexual lifestyle.
Lawrence, 539 U.S. at , 123 5. Ct. at 2484. Here, the involved actors are not
only consenting adults, but minors as well. The relevant state action is not
criminal prohibition, but grant of a statutory privilege. And the asserted liberty
interest is not the negative right to engage in private conduct without facing
criminal sanctions, but the affirmative right to receive official and public
recognition. Hence, we conclude that the Lawrence decision cannot be
extrapolated to create a right to adopt for homosexual persons.
D. Appellants' Equal Protection Challenge
1. Rational-Basis Review
The Equal Protection Clause ofthe Fourteenth Amendment proclaims that
"[n]o State shall. . . deny to any person within its jurisdiction the equal protection
of laws." U.S. Const. amend. XIV, § 1. The central mandate ofthe equal
protection guarantee is that "[t]he sovereign may not draw distinctions between
individuals based solely on differences that are irrelevant to a legitimate
governmental objective." Lehr v. Robertson, 463 U.S. 248, 265, 103 S. Ct. 2985,
2995 (1983). Equal protection, however, does not forbid legislative classifications.
Nordlinger v. Hahn, 505 U.S. 1, 10, 112 5. Ct. 2326, 2331 (1992). "It simply
keeps governmental decisionmakers from treating differently persons who are in
all relevant respects alike." Unless the challenged classification burdens a
fundamental right or targets a suspect class, the Equal Protection Clause requires
only that the classification be rationally related to a legitimate state interest.
Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 1627 (1996). As we have
explained, Florida's statute burdens no fundamental rights. Moreover, all of our
sister circuits that have considered the question have declined to treat homosexuals
as a suspect class.'6 Because the present case involves neither a fundamental right
nor a suspect class, we review the Florida statute under the rational-basis standard.
Rational-basis review, "a paradigm ofjudicial restraint," does not provide "a
license for courts to judge the wisdom, fairness, or logic of legislative choices."
F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313-14, 113 5. Ct. 2096,
2101 (1993) (citation omitted). The question is simply whether the challenged
legislation is rationally related to a legitimate state interest. Heller v. Doe, 509
U.S. 312, 320, 113 5. Ct. 2637, 2642 (1993). Under this deferential standard, a
legislative classification "is accorded a strong presumption ofvalidity," id. at 319,
113 5. Ct. at 2642, and "must be upheld against equal protection challenge if there
is any reasonably conceivable state of facts that could provide a rational basis for
the classification," id. at 320, 113 5. Ct. at 2642 (citation omitted). This holds true
"even ifthe law seems unwise or works to the disadvantage of a particular group,
or if the rationale for it seems tenuous." Romer, 517 U.S. at 632, 116 5. Ct. at
1627. Moreover, a state has "no obligation to produce evidence to sustain the
16 Equal. Found. of Greater Cincinnati, Inc. v. City ofCincinnati, 128 F.3d 289 (6th Cir. 1997);
Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126 (9th Cir. 1997); Richenberg v. Perry, 97 F.3d
256 (7th Cir. 1996); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996); Steffan v. Perry, 41 F.3d
677 (D.C. Cir. 1994); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563
(9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Woodward v. United
States, 871 F.2d 1068 (Fed. Cir. 1989); Town of Ball v. Rapides Parish Police Jury, 746 F.2d
1049 (5th Cir. 1984); Rich v. Sec'y ofthe Army, 735 F.2d 1220 (10th Cir.1984).
rationality of a statutory classification." Heller, 509 U.S. at 320, 113 S. Ct. at
2643. Rather, "the burden is on the one attacking the legislative arrangement to
negative every conceivable basis which might support it, whether or not the basis

has a foundation in the record." Id. at 320-21, 113 5. Ct. at 2643 (citation
2. Florida's Asserted Rational Bases
Cognizant ofthe narrow parameters ofour review, we now analyze the
challenged Florida law. Florida contends that the statute is only one aspect ofits
broader adoption policy, which is designed to create adoptive homes that resemble
the nuclear family as closely as possible. Florida argues that the statute is
rationally related to Florida's interest in furthering the best interests of adopted
children by placing them in families with married mothers and fathers. Such
homes, Florida asserts, provide the stability that marriage affords and the presence
of both male and female authority figures, which it considers critical to optimal
childhood development and socialization. In particular, Florida emphasizes a vital
role that dual-gender parenting plays in shaping sexual and gender identity and in
providing heterosexual role modeling. Florida argues that disallowing adoption
into homosexual households, which are necessarily motherless or fatherless and
lack the stability that comes with marriage, is a rational means of furthering
Florida's interest in promoting adoption by marital families.'7
Florida clearly has a legitimate interest in encouraging a stable and nurturing
environment for the education and socialization ofits adopted children. See, ~
Palmore v. Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 1882 (1984) ("The State, of
course, has a duty ofthe highest order to protect the interests ofminor children,
particularly those of tender years."); Stanley, 405 U.S. at 652, 92 5. Ct. at 1213
(noting that "protect[ing] the moral, emotional, mental, and physical welfare of the
minor" is a "legitimate interest[], well within the power of the State to implement")
(internal quotation marks omitted). It is chiefly from parental figures that children
learn about the world and their place in it, and the formative influence ofparents
'' Florida also asserts that the statute is rationally related to its interest in promoting
public morality both in the context ofchild rearing and in the context ofdetermining which types
of households should be accorded legal recognition as families. Appellants respond that public
morality cannot serve as a legitimate state interest. Because of our conclusion that Florida's
interest in promoting married-couple adoption provides a rational basis, it is unnecessary for us
to resolve the question. We do note, however, the Supreme Court's conclusion that there is not
only a legitimate interest, but "a substantial government interest in protecting order and
morality," Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569, 111 5. Ct. 2456, 2462 (1991), and its
observation that "[un a democratic society legislatures, not courts, are constituted to respond to
the will and consequently the moral values of the people." Gregg v. Georgia, 428 U.S. 153, 175,
96 S. Ct. 2909, 2926 (1976) (plurality opinion) (citation omitted).
We also note that our own recent precedent has unequivocally affirmed the furtherance of
public morality as a legitimate state interest. $~~ Williams v. Pryor, 240 F.3d 944, 949
(11th Cir. 2001) ("The crafting and safeguarding of public morality has long been an established
part of the States' plenary police power to legislate and indisputably is a legitimate government
interest under rational basis scrutiny."); see also id. at 949 n.3 ("In fact, the State's interest in
public morality is sufficiently substantial to satisfy the government's burden under the more
rigorous intermediate level of constitutional scrutiny applicable in some cases.").
extends well beyond the years spent under their roof, shaping their children's
psychology, character, and personality for years to come. In time, children grow
up to become full members of society, which they in turn influence, whether for
good or ill. The adage that "the hand that rocks the cradle rules the world" hardly
overstates the ripple effect that parents have on the public good by virtue of their
role in raising their children. It is hard to conceive an interest more legitimate and

more paramount for the state than promoting an optimal social structure for
educating, socializing, and preparing its future citizens to become productive
participants in civil society--particularlywhen those future citizens are displaced
children for whom the state is standing j~loco parentis.
More importantly for present purposes, the state has a legitimate interest in
encouraging this optimal family structure by seeking to place adoptive children in
homes that have both a mother and father. Florida argues that its preference for
adoptive marital families is based on the premise that the marital family structure is
more stable than other household arrangements and that children benefit from the
presence ofboth a father and mother in the home. Given that appellants have
offered no competent evidence to the contrary, we find this premise to be one of
those "unprovable assumptions" that nevertheless can provide a legitimate basis
for legislative action. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 62-63, 93 S. Ct.
2628, 2638 (1973). Although social theorists from Plato to Simone de Beauvoir
have proposed alternative child-rearing arrangements, none has proven as enduring
as the marital family structure, nor has the accumulated wisdom of several
millennia of human experience discovered a superior model. See, ~ Plato, The
Republic, Bk. V, 459d-46le; Simone de Beauvoir, The Second Sex (H. M.
Parshley trans., Vintage Books 1989) (1949). Against this "sum of experience," it
is rational for Florida to conclude that it is in the best interests of adoptive children,
many of whom come from troubled and unstable backgrounds, to be placed in a
home anchored by both a father and a mother. Paris Adult Theatre I, 413 U.S. at
63,93 5. Ct. at2638.
3. Appellants' Arguments
Appellants offer little to dispute whether Florida's preference for marital
adoptive families is a legitimate state interest. Instead, they maintain that the
statute is not rationally related to this interest. Arguing that the statute is both
overinclusive and underinclusive, appellants contend that the real motivation
behind the statute cannot be the best interest of adoptive children.
In evaluating this argument, we note from the outset that "it is entirely
irrelevant for constitutional purposes whether the conceived reason for the
challenged distinction actually motivated the legislature." Beach Communications,
508 U.S. at 315, 113 S. Ct. at 2102; see also City ofRenton v. Playtime Theatres,
Inc., 475 U.S. 41, 48, 106 5. Ct. 925, 929 (1986) ("It is a familiar principle of
constitutional law that this Court will not strike down an otherwise constitutional
statute on the basis of an alleged illicit legislative motive.") (citation omitted).
Instead, the question before us is whether the Florida legislature could have
reasonably believed that prohibiting adoption into homosexual environments
would further its interest in placing adoptive children in homes that will provide
them with optimal developmental conditions. See Panama City Med. Diagnostic
Ltd. v. Williams, 13 F.3d 1541, 1545 (11th Cir. 1994) ("The task is to determine if
any set of facts may be reasonably conceived of to justify the legislation."). Unless
appellants' evidence, which we view on summary judgment review in the light
most favorable to appellants, can negate every plausible rational connection
between the statute and Florida's interest in the welfare of its children, we are
compelled to uphold the statute. See Vance v. Bradley, 440 U.S. 93, 111, 99 5. Ct.
939, 949 (1979) ("In an equal protection case ofthis type, however, those
challenging the legislative judgment must convince the court that the legislative
facts on which the classification is apparently based could not reasonably be
conceived to be true by the governmental decisionmaker."). We turn now to
appellants' specific arguments.
a. Adoption by Unmarried Heterosexual Persons
Appellants note that Florida law permits adoption by unmarried individuals
and that, among children coming out the Florida foster care system, 25% of
adoptions are to parents who are currently single. Their argument is that

homosexual persons are similarly situated to unmarried persons with regard to
Florida's asserted interest in promoting married-couple adoption. According to
appellants, this disparate treatment lacks a rational basis and, therefore, disproves
any rational connection between the statute and Florida's asserted interest in
promoting adoption into married homes. Citing City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 105 S. Ct. 3249 (1985), appellants argue that the
state has not satisfied Cleburne's threshold requirement that it demonstrate that
homosexuals pose a unique threat to children that others similarly situated in
relevant respects do not.'8
18 Appellants also point to the fact that, in addition to single parents, substance abusers and
perpetrators ofdomestic violence are not categorically excluded from adopting under Florida
law. Appellants, however, have offered no evidence that such individuals are in reality ever
permitted to adopt in Florida and actually have stipulated to the contrary. Appellants stipulated
pre-trial that "[p]ersons with substance abuse problems are excluded from adopting children in
Florida if it is determined that the abuse threatens the child." R4-124 at 4. Likewise, appellants
stipulated that Florida law categorically excludes from adopting children those convicted of
certain crimes of domestic violence. See id. Moreover, Florida law bars foster care and adoptive
placement by DCF
1. In any case in which a record check reveals a felony conviction for child abuse,
abandonment, orneglect; for spousal abuse; for a crime against children, including child
pornography, or for a crime involving violence, including rape, sexual assault, or
homicide but not including other physical assault or battery, if the department finds that a
court ofcompetentjurisdiction has determined that the felony was committed at any
time; and
2. In any case in which a record check reveals a felony conviction for physical assault,
battery, or a drug-related offense, if the department finds that a court ofcompetent
jurisdiction has determined that the felony was committed within the past 5 years.
Fla. Stat. § 435.045(1)(a).
We find appellants' reading of Cleburne to be an unwarranted interpretation.
In Cleburne, the Supreme Court invalidated under the rational-basis test a
municipal zoning ordinance requiring a group home for the mentally retarded to
obtain a special use permit. Id. at 435, 105 S. Ct. at 3252. The municipality
argued that it had a legitimate interest in (1) protecting the residents ofthe home
from a nearby flood plain, (2) limiting potential liability for acts ofresidents of the
home, (3) maintaining low-density land uses in the neighborhood, (4) reducing
congestion in neighborhood streets, and (5) avoiding fire hazards. Id. at 449-50,
105 5. Ct. at 3259-60. The Court, however, found that the municipality failed to
distinguish how these concerns applied particularly to mentally retarded residents
of the home and not to a number of other persons who could freely occupy the
identical structure without a permit, such as boarding houses, fraternity houses, and
nursing homes. Id. The Court concluded that the purported justifications for the
ordinance made no sense in light of how it treated other groups similarly situated.
Id. at 450, 105 S. Ct. at 3260. Appellants have overstated Clebume's holding by
asserting that it places a burden on the State ofFlorida to show that homosexuals
pose a greater threat than other unmarried adults who are allowed to adopt. The
Cleburne Court reasserted the unremarkable principle that, when a statute imposes
a classification on a particular group, its failure to impose the same classification
on "other groups similarly situated in relevant respects" can be probative of a lack
of a rational basis. Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S.
356, 366 n.4, 121 5. Ct. 955, 963 n.4 (2001) (explaining Cleburne's rationale); see
also Nordlinger, 505 U.S. at 10, 112 S. Ct. at 2331 (noting that disparate treatment
is permissible unless differently treated classes "are in all relevant respects alike")

(emphasis added).
This case is distinguishable from Cleburne. The Florida legislature could
rationally conclude that homosexuals and heterosexual singles are not "similarly
situated in relevant respects." It is not irrational to think that heterosexual singles
have a markedly greater probability of eventually establishing a married household
and, thus, providing their adopted children with a stable, dual-gender parenting
environment. Moreover, as the state noted, the legislature could rationally act on
the theory that heterosexual singles, even ifthey never marry, are better positioned
than homosexual individuals to provide adopted children with education and
guidance relative to their sexual development throughout pubescence and
adolescence.'9 In a previous challenge to Florida's statute, a Florida appellate
court observed:
19 The New Hampshire Supreme Court, in considering the constitutionality of a similar
prohibition on homosexual adoption, concluded that the prohibition was rationally related to the
state's desire "to provide appropriate role models for children" in the development oftheir sexual
and gender identities. In re Op. ofthe Justices, 530 A.2d 21, 25 (N.H. 1987). That court noted
that "the source ofsexual orientation is still inadequately understood and is thought to be a
combination ofgenetic and environmental influences. Given the reasonable possibility of
environmental influences, we believe that the legislature can rationally act on the theory that a
role model can influence the child's developing sexual identity." Id. (citation omitted).
[W]hatever causes a person to become a homosexual, it is clear that the state
cannot know the sexual preferences that a child will exhibit as an adult.
Statistically, the state does know that a very high percentage of children
available for adoption will develop heterosexual preferences. As a result,
those children will need education and guidance after puberty concerning
relationships with the opposite sex. In our society, we expect that parents
will provide this education to teenagers in the home. These subjects are
often very embarrassing for teenagers and some aspects of the education are
accomplished by the parents telling stories about their own adolescence and
explaining their own experiences with the opposite sex. It is in the best
interests of a child if his or her parents can personally relate to the child's
problems and assist the child in the difficult transition to heterosexual
adulthood. Given that adopted children tend to have some developmental
problems arising from adoption or from their experiences prior to adoption,
it is perhaps more important for adopted children than other children to have
a stable heterosexual household during puberty and the teenage years.
Cox, 627 So. 2d at 1220. "It could be that the assumptions underlying these
rationales are erroneous, but the very fact that they are arguable is sufficient, on
rational-basis review, to immunize the legislative choice from constitutional
challenge." Heller, 509 U.S. at 333, 113 S. Ct. at 2649-50 (citation and internal
punctuation marks omitted). Although the influence of environmental factors in
forming patterns of sexual behavior and the importance of heterosexual role
models are matters of ongoing debate, they ultimately involve empirical disputes
not readily amenable to judicial resolution--aswell as policy judgments best
exercised in the legislative arena. For our present purposes, it is sufficient that
these considerations provide a reasonably conceivable rationale for Florida to
preclude all homosexuals, but not all heterosexual singles, from adopting.
The possibility, raised by appellants, that some homosexual households,
including those of appellants, would provide a better environment than would
some heterosexual single-parent households does not alter our analysis. The
Supreme Court repeatedly has instructed that neither the fact that a classification
may be overinclusive or underinclusive nor the fact that a generalization
underlying a classification is subject to exceptions renders the classification

irrational.2° "[C]ourts are compelled under rational-basis review to accept a
legislature's generalizations even when there is an imperfect fit between means and
ends." at 321, 113 S. Ct. at 2643. We conclude that there are plausible rational
reasons for the disparate treatment ofhomosexuals and heterosexual singles under
Florida adoption law and that, to the extent that the classification may be
imperfect, that imperfection does not rise to the level of a constitutional infraction.
b. Current Foster Care Population
Appellants make much ofthe fact that Florida has over three thousand
children who are currently in foster care and, consequently, have not been placed
20 ~ Beach Communications, 508 U.S. at 3 15-16, 113 5. Ct. at 2102 (noting that defining
legislative classes "inevitably requires that some persons who have an almost equally strong
claim to favored treatment be placed on different sides ofthe line, and the fact that the line might
have been drawn differently at some points is a matter for legislative, rather than judicial,
consideration") (citation omitted); Vance, 440 U.S. at 108, 99 S. Ct. at 948 ("Even if the
classification involved here is to some extent both underinclusive and overinclusive, and hence
the line drawn by Congress imperfect, it is nevertheless the rule that in a case like this perfection
is by no means required.") (internal quotation marks omitted); Village ofBelle Terre v. Boraas,
416 U.S. 1, 8, 94 S. Ct. 1536, 1540 (1974) ("[E]very line drawn by a legislature leaves some out
with permanent adoptive families. According to appellants, because excluding
homosexuals from the pool ofprospective adoptive parents will not create more
eligible married couples to reduce the backlog, it is impossible for the legislature to
believe that the statute advances the state's interest in placing children with
married couples.
We do not agree that the statute does not further the state's interest in
promoting nuclear-family adoption because it may delay the adoption of some
children. Appellants misconstrue Florida's interest, which is not simply to place
children in a permanent home as quickly as possible, but, when placing them, to do
so in an optimal home, i.e., one in which there is a heterosexual couple or the
potential for one. According to appellants' logic, every restriction on adoptiveparent
candidates, such as income, in-state residency, and criminal record--none
of which creates more available married couples--arelikewise constitutionally
suspect as long as Florida has a backlog ofunadopted foster children. The best
interests of children, however, are not automatically served by adoption into any
available home merely because it is permanent. Moreover, the legislature could
rationally act on the theory that not placing adoptees in homosexual households
increases the probability that these children eventually will be placed with marriedthat
might well have been included. That exercise of discretion, however, is a legislative, not a
judicial, function.").
couple families, thus furthering the state's goal ofoptimal placement. Therefore,
we conclude that Florida's current foster care backlog does not render the statute
c. Foster Care and Legal Guardianship
Noting that Florida law permits homosexuals to become foster parents and
permanent guardians, appellants contend that this fact demonstrates that Florida
must not truly believe that placement in a homosexual household is not in a child's
best interests.2' We do not find that the fact that Florida has permitted homosexual
foster homes and guardianships defeats the rational relationship between the statute
and the state's asserted interest. We have not located and appellants have not cited
any precedent indicating that a disparity between a law and its enforcement is a
relevant consideration on rational-basis review, which only asks whether the
legislature could have reasonably thought that the challenged law would further a
legitimate state interest. Thus, to the extent that foster care and guardianship
placements with homosexuals are the handiwork of Florida's executive branch,

they are irrelevant to the question of the legislative rationale for Florida's adoption
21Asjde from their own situations, appellants have offered no competent evidence as to the extent
of homosexual foster homes and guardianships in Florida. Florida asserts, and appellants do not
dispute, that in discovery it was able to locate only one known homosexual foster parent, aside
from present parties, in all of Dade and Monroe Counties.
scheme.22 To the extent that these placements are the product of an intentional
legislative choice to treat foster care and guardianships differently than adoption,
the distinction is not an irrational one. Indeed, it bears a rational relationship to
Florida's interest in promoting the nuclear-family model of adoption since foster
care and guardianship have neither the permanence nor the societal, cultural, and
legal significance as does adoptive parenthood, which is the legal equivalent of
natural parenthood. Fla. Stat. § 63.032(2).
Foster care and legal guardianship are designed to address a different
situation than permanent adoption, and "the legislature must be allowed leeway to
approach a perceived problem incrementally." Beach Communications, 508 U.S.
at 316, 113 S. Ct. at 2102. The fact that "[t]he legislature may select one phase of
one field and apply a remedy there, neglecting the others," does not render the
legislative solution invalid. Id. (citation omitted); Heller, 509 U.S. at 321, 113 5.
Ct. 2643 ("The problems of government are practical ones and mayjustify, ifthey
do not require, rough accommodations--illogical,it may be, and unscientific.")
(citation omitted). We conclude that the rationality of the statute is not defeated by
22 For similar reasons, we find inapposite appellants' proffer of the deposition testimony of DCF
personnel acknowledging that they were personally unaware ofany harms to children caused by
having homosexual parents. Even if these statements ofpersonal opinion can be charged to DCF
(whose official position throughout this litigation has been to the contrary), they are irrelevant to
the question ofwhether the Florida legislature could have had a rational basis for enacting the
the fact that Florida permits homosexual persons to serve as foster parents and
legal guardians.
d. Social Science Research
Appellants cite recent social science research and the opinion ofmental
health professionals and child welfare organizations as evidence that there is no
child welfare basis for excluding homosexuals from adopting.23 They argue that
the cited studies show that the parenting skills ofhomosexual parents are at least
equivalent to those ofheterosexual parents and that children raised by homosexual
parents suffer no adverse outcomes. Appellants also point to the policies and
practices ofnumerous adoption agencies that permit homosexual persons to adopt.
In considering appellants' argument, we must ask not whether the latest in
social science research and professional opinion support the decision ofthe Florida
legislature, but whether that evidence is so well established and so far beyond
dispute that it would be irrational for the Florida legislature to believe that the
interests of its children are best served by not permitting homosexual adoption.
Also, we must credit any conceivable rational reason that the legislature might
have for choosing not to alter its statutory scheme in response to this recent social
23 For the sake ofsimplicity, our discussion here will attribute to appellants not only their own
arguments but also the arguments made in the amicus brief filedjointly on theirbehalf by the
Child Welfare League of America, Children's Rights, Inc., the Evan B. Donaldson Adoption
Institute, and the National Center for Youth Law.
science research. We must assume, for example, that the legislature might be
aware ofthe critiques of the studies cited by appellants-critiques that have
highlighted significant flaws in the studies' methodologies and conclusions, such
as the use ofsmall, self-selected samples; reliance on self-report instruments;

politically driven hypotheses; and the use ofunrepresentative study populations
consisting of disproportionately affluent, educated parents.24 Alternatively, the
legislature might consider and credit other studies that have found that children
raised in homosexual households fare differently on a number ofmeasures, doing
worse on some ofthem, than children raised in similarly situated heterosexual
households.25 Or the legislature might consider, and even credit, the research cited
by appellants, but find it premature to rely on a very recent and still developing
24 ~ ~g2, D. Baumrind, Commentary on Sexual Orientation: Research and Social Policy
Implications, 31 Developmental Psychol. 130 (No. 1, 1995) (reviewing various studies and
questioning them on "theoretical and empirical grounds" because offlaws such as small sample
sizes, reliance on self-report instruments, and self-selected, unrepresentative study populations);
R. Lerner & A.K. Nagai, No Basis: What the Studies Don't Tell Us About Same-Sex Parenting,
Marriage Law Project (Jan. 2001) (reviewing forty-nine studies on same-sex parenting and
finding recurring methodological flaws, including failure to use testable hypotheses, lack of
control methods, unrepresentative study populations, self-selected sample groups, and use of
negative hypotheses); J. Stacey & T. Biblarz, (How) Does the Sexual Orientation ofParents
Matter, 66 Am. Soc. Rev. 159, 166 (2001) (reviewing 21 studies and finding various
methodological flaws, leading authors to conclude that "there are no studies ofchild
development based on random, representative samples" of same-sex households).
25 ~ ~ K. Cameron & P. Cameron, Homosexual Parents, 31 Adolescence 757, 770-774
(1996) (reporting study findings that children raised by homosexual parents suffer from
disproportionately high incidence of emotional disturbance and sexual victimization); Stacey &
Biblarz, supra, at 170 (concluding, based on study results, that "parental sexual orientation is
positively associated with the possibility that children will attain a similar orientation, and theory
and common sense also support such a view").
body ofresearch, particularly in light of the absence of longitudinal studies
following child subjects into adulthood and of studies of adopted, rather than
natural, children ofhomosexual parents.26
We do not find any of these possible legislative responses to be irrational.
Openly homosexual households represent a very recent phenomenon, and
sufficient time has not yet passed to permit any scientific study of how children
raised in those households fare as adults. Scientific attempts to study homosexual
parenting in general are still in their nascent stages and so far have yielded
inconclusive and conflicting results. Thus, it is hardly surprising that the question
of the effects of homosexual parenting on childhood development is one on which
even experts of good faith reasonably disagree. Given this state ofaffairs, it is not
irrational for the Florida legislature to credit one side ofthe debate over the other.
Nor is it irrational for the legislature to proceed with deliberate caution before
26 We also note Justice Cordy's extensive, and persuasive, discussion of the currently available
body of research on the question of homosexual parenting in his dissenting opinion in
Goodridge v. Dep't ofHealth, No. SJC-08860, 2003 Mass. LEXIS 814 (Mass. Nov. 18, 2003).
After surveying the early findings, as well as the critiques, of that research (much ofwhich was
also proffered by the parties and amici curiae in this case), Justice Cordy concludes:
Taking all ofthis available information into account, the Legislature could rationally
conclude that a family environment with married opposite-sex parents remains the
optimal social structure in which to bear children, and that the raising ofchildren by
same-sex couples, who by definition cannot be the two sole biological parents ofa child
and cannot provide children with a parental authority figure ofeach gender, presents an
alternative structure for child rearing that has not yet proved itself beyond reasonable

scientific dispute to be as optimal as the biologically based marriage norm.
Id. at *163 (Cordy, J., dissenting) (footnote omitted).
placing adoptive children in an alternative, but unproven, family structure that has
not yet been conclusively demonstrated to be equivalent to the marital family
structure that has established a proven track record spanning centuries.
Accordingly, we conclude that appellants' proffered social science evidence does
not disprove the rational basis of the Florida statute.
e. Romer v. Evans
Finally, we disagree with appellants' contention that Romer requires us to
strike down the Florida statute. In Romer, the Supreme Court invalidated
Amendment 2 to the Colorado state constitution, which prohibited all legislative,
executive, orjudicial action designed to protect homosexual persons from
discrimination. 517 U.S. 620, 624, 116 S. Ct. 1620, 1623 (1996). The
constitutional defect in Amendment 2 was the disjunction between the "[s]weeping
and comprehensive" classification it imposed on homosexuals and the state's
asserted bases for the classification--respectfor freedom of association and
conservation ofresources to fight race and gender discrimination. Id. at 627, 116
S. Ct. at 1625. The Court concluded that the Amendment's "sheer breadth is so
discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class it affects." Id. at 632, 116 S.
Ct. at 1627.
Unlike Colorado's Amendment 2, Florida's statute is not so "[s]weeping and
comprehensive" as to render Florida's rationales for the statute "inexplicable by
anything but animus" toward its homosexual residents. Amendment 2 deprived
homosexual persons of "protections against exclusion from an almost limitless
number oftransactions and endeavors that constitute ordinary civic life in a free
society." Id. at 631, 116 5. Ct. at 1627. In contrast to this "broad and
undifferentiated disability," the Florida classification is limited to the narrow and
discrete context ofaccess to the statutory privilege of adoption27 and, more
importantly, has a plausible connection with the state's asserted interest. Id. at
632, 116 5. Ct. at 1627. Moreover, not only is the effect ofFlorida's classification
dramatically smaller, but the classification itself is narrower. Whereas
Amendment 2's classification encompassed both conduct and status, id. at 624,
116 5. Ct. at 1623 (quoting the text ofAmendment 2, which covered "homosexual,
lesbian or bisexual orientation, conduct, practices or relationships"), Florida's
adoption prohibition is limited to conduct, see Cox, 627 So. 2d at 1215. Thus, we
27 See also Equal. Found. ofGreater Cincinnati, Inc. v. City ofCincinnati, 128 F.3d 289, 299
(6th Cir. 1997):
[TIhe Romer majority's rejection of rational relationship assessment hinged upon the
wide breadth ofColorado Amendment 2, which deprived a politically unpopular minority
of the opportunity to secure special rights at every level of state law. The uniqueness of
Colorado Amendment 2's sweeping scope and effect differentiated it from the "ordinary
case" in which a law adversely affects a discernable group in a relatively discrete manner
and limited degree.
conclude that Romer's unique factual situation and narrow holding are inapposite
to this case.
We exercise great caution when asked to take sides in an ongoing public
policy debate, such as the current one over the compatibility of homosexual
conduct with the duties of adoptive parenthood. See Reno, 507 U.S. at 315, 113 S.
Ct. at 1454; Schall v. Martin, 467 U.S. 253, 281, 104 5. Ct. 2403, 2419 (1984).
The State of Florida has made the determination that it is not in the best interests of
its displaced children to be adopted by individuals who "engage in current,
voluntary homosexual activity," Cox, 627 So. 2d at 1215, and we have found
nothing in the Constitution that forbids this policy judgment. Thus, any argument
that the Florida legislature was misguided in its decision is one of legislative
policy, not constitutional law. The legislature is the proper forum for this debate,

and we do not sit as a superlegislature "to award by judicial decree what was not
achievable by political consensus." Thomasson v. Perry, 80 F.3d 915, 923 (4th
Cir. 1996). The judgment ofthe district court is AFFIRMED.