Easy Cases and Bad Law

The Uncivil Litigator points us to a Texas Law under consideration that would ban gay couples from serving as foster parents. UCL asks how the law could not be held unconstitutional based on the Supreme Court's precedent in Romer v. Evans. The answer lies in the 11th Circuit's abysmal ruling in Lofton v. Department of Children and Family Services, upholding Florida's prohibition on adoption by gay couples. The case isn't binding in Texas (it lies in the 5th Circuit), but both Court's are overwhelmingly conservative and I'd imagine the latter will latch onto any case which would support their position, no matter how erroneous it was.

In December of 2004, an Arkansas state judged ruled a similar law unconstitutional in Howard v. Arkansas, saying it violated separation of powers. Though brief, there are several issues to note in that opinion that deserve discussion.

The opinion gave an excellent overview of the testimony presented to the court. Dr. Michael Lamb, of the National Institute of Child Health and Human Development, superbly analyzed the body of literature on homosexual parenting, concluding that being raised by gay parents:

(i) does not increase the risk of problems of adjustment for children; (ii) does not increase the risk of psychological problems for children; (iii) does not increase the risk of behavioral problems; (iv) does not prevent children from forming healthy relationships with their peers and others; (v) does not cause academic problems; (vi) does not cause gender identity problems; and (vii) does not cause any adjustment problems at all. [op. at 19]

Dr. Lamb also addresses one of the most salient, and misleading, claims put forward by "pro-family" groups on the issue: that "children do better with a mother and a father." Lamb correctly notes that what that research actually says is that children do better in two parent homes than single parent homes. However, there is no statistical disparity between two-parent heterosexual homes versus two-parent homosexual ones.

In contrast to Dr. Lamb, whom the court characterized as "the most outstanding of the expert witnesses" and "the best example of what an expert witness is supposed to do at trial," the opinion characterized Dr. George Rekers--the primary expert witness for the state--as "there primarily to promote his own personal ideology" even at the expense of the facts, refusing to directly answer questions, and giving inconsistent testimony throughout the case. Rekers, in addition to being a tenured Professor of Psychology at The University of South Carolina, tries to "cure" homosexuality in his private practice, an attempt characterized as "unethical" by the APA. In all, the expert evidence given in the case was overwhelmingly in favor of allowing qualified homosexuals to adopt. Because the statutory authority given to the advisory board was solely related to the best interests of the child, then, the board exceeded its authority by prohibiting qualified homosexuals from adopting without any scientific basis to do so.

Unfortunately, when the opinion proceeded to analyze equal protection claims (an endeavor the court admitted was "moot" due to the separation of powers judgment but undertaken anyway for the sake of completeness), the court held that there was no violation. The Court first held that homosexuals are not a suspect class as a matter of "well-settled law." I'm not sure if that's true, and even if true it strikes me as badly misguided, but I can understand the reluctance of a state circuit judge to be the one to say it outright. It seems clear that Homosexuals, if not subject to strict scrutiny, are at least within the realm of heightened scrutiny. The standards for applying heightened scrutiny are whether the group has:

"experienced a 'history of purposeful unequal treatment' or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." [Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976), quoting San Antonio School District v. Rodriguez, 411 U.S. 1, 28 (1973)]

It seems self-evidently clear that homosexuals meet this test, and thus the proper standard of review is heightened scrutiny, not rational basis.

Beyond that, though, the court misapplies the rational basis test. The rational basis test was explicated most clearly in City of Cleburne v. Cleburne Living Center. Applying rational basis, the court found that the cities restrictions on a group home for the mentally retarded "rest on an irrational prejudice against the mentally retarded" and thus was impermissible [473 U.S. 432, 450]. The supposed rational basis for the Arkansas law, by contrast, was "public morality." The court here seemed to feel that in absence of any quantifiable measure of what "public morality" means here, or even a statement by the legislature to that effect, the court should just assume public morality is the justification for the law and thus conclude the law was rationally related to that objective. But this is patently absurd. First of all, it represents a peculiar quasi-attempt to divine the thoughts of legislature, assuming without proof that the legislature believes this law to be related to public morality without in anyway explicating what the connection is. What moral concern of the state of Arkansas is implicated or furthered by this bill? It can't be simple moral disapproval of homosexuality without cause, for that would be an "irrational prejudice" and thus would be barred via Cleburne. The court concedes that showing the health, safety, or welfare of children was implicated would satisfy rational basis, but the opinion specifically rejects that due to the testimony of Dr. Lamb and others. The only "moral" issue of relevance here, it seems, is to seek to legally hamper homosexuals to show the state feels their actions are wrong. It is true that nobody in Cleburne was labeling retarded people "immoral" (though it is at least conceivable that a given set of people might believe God punished immoral people by making them developmentally disabled). This just encourages vague statute writing, however, the state by virtue of it’s silence can later argue any challenged law relates to “public morality. ” Society cannot hide its pre-existing biases by labeling them "morality," and the very least, the Court cannot just assume those biases exist.

Second, even granting that the state could, in general, could legally constrain someone because of "immoral" actions, they can't in this case because Lawrence v. Texas precludes it. The Arkansas court argues that the rights implicated in Lawrence were far more extensive than in the present argument, so the cases aren't analogous. That would be true, except the state is punishing persons for precisely the action Lawrence said was protected, IE, it is punishing them for constitutionally protected behavior. As Lawrence stated: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." The Court specifically referenced the "stigma" (see here, infra Part V, for more on this) that legal restrictions against homosexuals place upon them. The Court clearly dismissed the idea that morality was able to outweigh this:

"[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society..."

The Arkansas statute specifically defined the disabling act as homosexual conduct by anyone present in the house. Not only does that prevent practicing homosexuals from getting foster children, but it prevents even non-homosexuals from this as well if they live with a homosexual (one of the plaintiffs in this case was a heterosexual married couple who lived with their adult gay son). Far from being an oversight, the testimony makes it clear this was an explicit goal of the statute. The testimony of James Balcom of the Child Welfare Agency Review Board indicated that he had not just an objection to homosexual behavior, but "to people being in a household where a same-sex relationship is going on." In otherwords, being in the presence of a practicing homosexual is morally condemnable. This raises troubling free association claims unaddressed by the court, not to mention the disturbing implication that homosexuals should never be allowed in the presence of any "moral" individual.

In its dismissal of the equal protection and privacy claims, the court relied heavily on Lofton, which lends credence to the fears that Texas Courts will do the same. Furthermore, I do not think the 5th circuit will find the "separation of powers" argument compelling (if it is even applicable to the case at all). So although the judgment was a victory, it could turn into a mixed blessing.

The sponsor of the Texas law, State Representative Robert Talton, said that

"It is our responsibility to make sure that we protect our most vulnerable children, and I don't think we are doing that if we allow a foster parent that is homosexual or bisexual."

With all due respect to Representative Talton, it is not protecting the most vulnerable children when we leave them to languish in the foster system, without loving parents, without any parental figures at all. Removing qualified candidates from the foster system hurts children, and Talton should be ashamed of himself.

I'll conclude with the memorable words of Judge Birch, who gave the majority opinion denying rehearing en banc of the Lofton case:

"If I were a legislator, rather than a judge, I would vote in favor of considering otherwise eligible homosexuals for adoptive parenthood. In reviewing the record in this case one can only be impressed by the courage, tenacity and devotion of Messrs. Lofton and Houghton for the children placed in their care. For these children, these men are the only parents they have ever known. Thus, I consider the policy decision of the Florida legislature to be misguided and trust that over time attitudes will change and it will see the best interest of these children in a different light."

May we all see that different light in the very near future.