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					                                    ARGUMENT

      This court should invalidate Florida Statute § 63.042 subsection 3 and its

categorical ban of homosexual adoption because it is a violation of the Equal

Protection Clause of the Fourteenth Amendment. In the instant case the court has

scrutinized the constitutional validity of Florida Statute § 63.042 subsection 3 by

applying the standard rational basis review. The respondent argues that rational

basis review is the only applicable level of scrutiny to test the constitutional

validity of Florida Statute § 63.042 subsection 3 because there is a legitimate

governmental interest being meet and homosexuals are not a suspect class

necessitating the more searching standard of review. But as Justice O’Connor

asserts in her concurring opinion, when a law exhibits a desire to harm a politically

unpopular group a more searching standard of review must be applied Lawrence v.

Texas., 123 U.S. 2472 (2003), 2485. Furthermore, the court should invalidate

Florida Statute § 63.042 subsection 3 because it is riddled with exceptions making

it in practical effect not thorough enough to meet the purported legislative goal of

promoting the best interest of the child.

      I. THIS COURT SHOULD INVALIDATE FLORIDA STATUTE § 63.042
      SUBSECTION 3 ON THE GROUNGS THAT IS UNCONSTITUTIONAL
      BECAUSE IT IS A VIOLATION OF THE EQUAL PROTECTION
      CLAUSE OF THE FOURTEENTH AMMENDMENT.




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      While respondents argue that the standard rational basis review is applicable

in the instant case, the petitioner asserts the need for a more searching standard of

review is needed to appropriately test the constitutional validity App. 55. To

constitute a constitutionally valid classification that passes the rational basis test

the classification must be rationally related to a legitimate governmental interest,

United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

      The respondent argues that the purpose of the provision in the statute is to

promote the best interest of the child optimally facilitated through opposite

gendered married parents; however this purpose is not meet because the categorical

ban on homosexual adoption makes many potential positive parents unable to

adopt children App. 50. Currently there are around 3400 children waiting to be

adopted in Florida and continue to live parentless, in part because of this provision

App. 50.

      It is a clear violation of the Equal Protection Clause of the Fourteenth

Amendment to unfairly single out a class of people based on criteria unrelated to a

legitimate governmental interest of the statute Moreno, 535. Homosexuals are the

only class of people named and categorically banned from adopting children in the

state of Florida with no other group of people despite moral repugnance being

categorically banned from adopting children in the state of Florida App. 48-49.




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      A. THIS COURT SHOULD USE THE MORE SEARCHING STANDARD
      OF REVIEW IN THE INSTANT CASE TO TEST THE
      CONSTITUTIONAL VALIDITY OF FLORIDA STATUTE § 63.042
      SUBSECTION 3.


      As O’Connor asserts in her concurring opinion a more searching standard of

review is needed when a law exhibits a desire to harm a politically unpopular

group, Lawrence, 2485. Historically speaking, homosexuals are a part of a

politically unpopular group that has faced social oppression, marginalization,

public ridicule, and hate crimes. In fact, according the most recent data compiled

and released by the FBI in a report called "Crime in the United States in 2002," it

was asserted that bias against a victim's perceived sexual orientation represents

16.7 percent of reported hate crimes, making it the third highest reported category

of hate crimes in the United States, http://www.fbi.gov/ucr/hatecrime2002.pdf, 10.

Although the legislature has not committed a literal hate crime in the instant case,

this information is merely being used to elucidate the fact that homosexuals satisfy

the necessary component of being a politically unpopular necessitating a more

searching standard of review Lawrence, 2485.

      In similar cases, such as the instant one the court struck down statutes which

unfairly singled out politically unpopular groups Moreno, 538 and City of

Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 455 (1985). In Moreno

the court stuck down a statute because the legislative history indicated that statute



                                          3
was unfairly targeting a politically unpopular group of people who chose to reside

in communal living situations referred to as hippies Id. at 534. The legislative

intent of the statute at issue in Moreno was to target a marginalized class of people

known as hippies exacerbating economic burdens facing them as well as reflecting

animus feelings toward people who live the communal residence Id. at 534. The

court found that the actual legislative intent was not as the state purported Id. at

538. Although the state argued that the statute was created to prevent the

commission of fraud, instead it was used to prevent welfare benefits from being

procured by “those persons who are so desperately in need of aid that they cannot

even afford to alter their living arrangements so as to retain their eligibility" Id. at

538. The court in Moreno established the rule that “bare congressional desire to

harm a politically unpopular group cannot constitute a legitimate governmental

interest,” Id. at 534.

       A similar situation arose in the case of Cleburne, when the court struck

down a statute unfairly singling out a politically unpopular group comprised of

mentally retarded individuals Id. 438. In Cleburne the statute at issue required

only mentally retarded individuals to procure a special permit to allow their co-

habitation, however no other group of people were required to obtain a permit

regardless of a similar size homes or the same number of people living together Id.

at 436. The supposed reasoning behind the classification in the statute was that the



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legislators harbored legitimate fear concerning the safety of mentally retarded

people because their proposed group home was located on a flood plain Id. 449.

The Texas legislature feared that people with lowered mental capacity would have

the inability to escape safely from their homes if a flood were to occur in the area

Id. 449. The legislators also claimed that elderly people feared living near

mentally retarded individuals and that mentally retarded residents would face harsh

treatment from junior high school students that attended a school near the group

home Id. at 449-50. These fears were deemed to be invalid because other groups,

such as fraternity houses and nursing homes which housed a similar amount of

people, facing the same issues enumerated were not required to obtain the special

permit to cohabitate Id. at 439. When the court held that the classification was

onerous Cleburne established the rule that “persons similarly situated should be

treated alike” Id. at 439.

      Both Cleburne and Moreno assert that it is a violation of the Equal

Protection Clause of the Fourteenth Amendment to unfairly single out a politically

unpopular group based on criteria wholly unrelated to the legitimate governmental

purpose of the statute Moreno, 534. The instant case is intellectually parallel to

both of the previously stated cases because homosexuals are the only class of

people to be singled out by the statute App. 48-49. No other group of people has

been categorically banned from adoption in the state of Florida, including people



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of obvious moral repugnance, such as child molesters, domestic violence

offenders, drug dealers or abusers App. 48-49.

      The state asserts that the reasoning for this categorical ban is not a reflection

of animus intent toward homosexuals, but rather an attempt to focus on the best

interest of the child App. 50. The best interest of the child has been neglected in

the instant case, in which petitioner, Steven Lofton, has served as sole foster

caretaker of John Doe since only two months after his being placed into the

adoption system App. 51. Steven Lofton is a registered nurse who is able to render

expert medical care necessary to sustain the life of John Doe who was born HIV

positive and with both cocaine and marijuana in his system App. 51. To deny John

Doe the ability to have a parent who gave up his occupation to stay home and take

care of his most essential medical needs is an obvious abandonment of John Doe's

best interest App. 51. But this case does not just rest on the sole welfare of John

Doe, but rather all children denied positive and stable parental homes on the basis

of sexual orientation App. 50. Many children continue to live without parents

because of Florida Statute § 63.042 subsection 3 App. 50. The state can offer no

conclusive evidence that homosexuals cannot provide a stable home for children

with the ability to socialize normal gender roles App. 54.




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      B. THIS COURT SHOULD INVALIDATE FLORIDA STATUTE §
      63.042 SUBSECTION 3 BECAUSE IT IS SO RIDDLED WITH
      EXCEPTIONS MAKING IT IN PRACTICAL OPERATION NOT
      THOROUGH ENOUGH TO MEET THE LEGISLATIVE GOAL.


      The state argues that the best of the child is at stake and in order to suit this

interest a home with a mother and father is needed, with this interest furthered by

the categorical ban on homosexual adoption App. 53. However, Florida Statute §

63.042 subsection 3 is riddled with exceptions, making it in practical operation not

thorough enough to meet the legislative goal. In similar cases where clear

exceptions were included in the statute, the court invalidated statutes in Moreno,

537 and Eisenstadt v. Baird., 405 U.S. 438 (1972).

      The court held in Moreno that the reasoning behind the statute at issue

proposed that the denial of welfare benefits to a class of unrelated people who

lived together in a single residence was justified because it furthered the goal of

preventing fraud Id. 534. However, upon examination the legislative goal was

revealed to already be satisfied within the construction of the statute because it

contained provisions aimed specifically at preventing fraudulent use of welfare

benefits Id. 536-37.

      The court must invalidate statutes which are so riddled with exceptions that

in practical operation the statute cannot meet the legislative goal Eisenstadt v.

Baird., 405 U.S. 438 (1972). In Eisenstadt a statute banned the sale or distribution



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of contraceptive items to non-married individuals with the proposed legislative

intent to promote the sanctity of marriage, to deter premarital sexual interactions,

and to facilitate the state’s interest to protect the health of its citizens Id. at 445-

446. However, it was clear that the moral purpose of deterring premarital sex and

promoting the sanctity of marriage was abandoned because the statute allowed the

sale of contraceptive items to married individuals regardless of their use with or

without their spouse Id. at 448. The statute was also proved to be dubious because

the state allowed the sale of contraceptive materials to prevent the spread of

disease among non-married people Id. at 451. The Equal Protection Clause of the

Fourteenth Amendment denies “the state the power to legislate that different

treatment be accorded to persons placed by a statute into different classes on the

basis of criteria wholly unrelated to the objective of that statute” Id. at 447. The

statute fails the rational basis test because it does not actually promote the

legislators intent and instead unfairly singles out non-married people to be denied

contraceptive rights. The court held that “whatever the rights of the individual to

access to contraceptives may be, the rights must be the same for the unmarried and

the married alike” Id. at 453.

       The statute at issue in the instant case reflects a statute riddled with

exceptions necessitating the court to invalidate it Moreno, 437 and Eisenstadt, 453.

Despite the supposed legislative intent of promoting traditional familial structures



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for adopted children about twenty-five percent of all adoptions in Florida are by

completed by single people and in the Miami-Dade area alone about forty percent

of all adoptions are by single people App. 51. Respondent argues single

heterosexual adoptive parents have a higher probability of obtaining legal marital

status than do gay people, thus enabling them to facilitate the optimal state of

parental partnering App. 53. Homosexual people cannot legally marry in Florida

and therefore can never satisfy the statutory requirement of being a married couple

1-1 Florida Family Law § 1.01.

      Another exception in the instant case making the statute not thorough

enough to meet the legislative goal is the fact that homosexual people are allowed

to serve as foster parents App. 59. The state argues that foster care is most often

on a temporary basis and the provision in the statute is to attempt to promote a

stable permanent home with a mother and father App. 50. However in many cases,

such as the instant one, foster care extends for many years facilitating the

necessary stability of an optimal home for the child App. 51. The most illogical of

the exceptions is the fact that non-practicing homosexuals are allowed to adopt

children in Florida App. 50. If the logic of the state is correct that only

heterosexual people can facilitate normal heterosexual gender roles, then it would

it logically follow that non-practicing homosexuals would still homosexuals thus

unable to facilitate normal gender roles in their children App. 53. If the



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respondent’s logic is correct then there would be no gay people in the world

because children have to biologically come from heterosexual people, which would

socialize heterosexual gender roles. However an examination of society will

reveal homosexuality is fairly pervasive.

      II. THE PROVISION NAMING ONLY HOMOSEXUALS IS A
      REFLECTION OF ANIMUS INTENT TOWARD HOMOSEXUAL
      INDIVIDUALS IN THE STATE OF FLORIDA. ANIMUS INTENT CAN
      NEVER SERVE A LEGITIMATE GOVERMENTAL INTEREST AND IS
      A VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE
      FOURTEENTH AMENDMENT.


      Animus intent can never serve a legitimate governmental interest Romer v.

Evans, 517 U.S. 620, 624 (1996). In Romer the court struck down a Colorado

statute, Amendment 2, which “prohibited all legislative, executive or judicial

action at any level of state or local government designed to protect the named

class, a class we shall refer to as homosexual persons or gays and lesbians” Id. at

624. The statute on its face violates the Equal Protection Clause of the Fourteenth

Amendment because it denied only one specific class of people the guaranteed

right of legal protection Id. at 626. The supposed intent behind the statute was the

state's effort to protect the associational rights of landlords and employers from

subjective objections to homosexuality while saving the states resources for other

areas of discriminatory behavior Id. at 635. By singling out only one class of of

people and denying them rights, a special disability was imposed upon them Id. at



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632. By singling out homosexuals, the Colorado statute denies gay people the

ability to redress discrimination, which “inflicts on them immediate, continuing,

and real injuries that outrun and belie any legitimate justifications that may be

claimed for it” Id. at 635. By singling out only one class of people it is logical to

infer animus intent toward homosexuals and animosity toward homosexuals is just

as "reprehensible as racial and religious bias" Id. dissenting opinion at 635. In the

instant case one can logically infer that there is animus intent driving the

legislation because homosexuals are the only class of people unfairly singling out

and categorically banned from adoption in the state of Florida App. 48-49.

Another embodiment of animus intent harbored by the Florida legislature is the

fact that no other state in the United States has a categorical ban on homosexuals

from adopting children.

      III. WHEN A LAW INFRINGES ON A FUNDAMENTAL RIGHT
      STRICT SCRUTINY MUST BE APPLIED TO TEST ITS
      CONSTITUTIONAL VALIDITY.

       When a classification in a statute impinges on a fundamental right the strict

scrutiny standard of review is triggered to examine constitutional validity Zablocki

v. Redhail, 434 U.S. 374, 381 (1978). In Lawrence a Texas statute making

sodomy a criminally culpable act was invalidated because it was found to impinge

upon a fundamental right Id. 2472. After entering the home of John Geddes

Lawrence a police officer observed Lawrence and another man engaging in



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sodomy and arrested them because of their violation of Texas Penal Code

Annotated §21.06(a)(2003) Id. at 2480. Although there was case law in favor of

the statutory prohibition of sodomy, upon review the court in Lawrence decided

that continuation of the criminalization of homosexual activity “demeans the lives

of homosexual persons” Id. at 2482. The statute was overturned because Lawrence

and his partner had the right to engage in consensual adult acts within in the

privacy of their home Id. at 2484. The legislative intent classifying and penalizing

one group of people was clearly motivated by moral disapproval and prejudice

toward homosexuals Id. at 2486. Moral disapproval can never be a legitimate

purpose for a piece of legislation Id. 2486. The court in Lawrence established the

precedent rule that citizens of the United States have the right to engage in

homosexual relations because they are endowed the fundamentals right to privacy

within the confines of their own homes without governmental intrusion Id. at 2486.

      While the right to adopt is not a constitutionally protected fundamental right,

the right to freely engage in sexual relations is protected Lawrence, 2486. Rights

involving the construction of the family, child-rearing, marriage, procreation, and

education are all rights that are deemed fundamental, as they are implicitly

guaranteed in the constitution Id. at 2482. “These matters, involving the most

intimate and personal choices a person may make in a lifetime, choices central to

personal dignity and autonomy, are central to the liberty protected by the



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Fourteenth Amendment. At the heart of liberty is the right to define one's own

concept of existence, of meaning, of the universe, and of the mystery of human

life. Beliefs about these matters could not define the attributes of personhood were

they formed under compulsion of the State" Id. at 2482.

       The fundamental right to engage in homosexual acts has been impinged on

in the instant case because Steven Lofton and other homosexuals in the state of

Florida are forced to chose between their governmentally protected right to engage

in homosexual acts or adopt children App. 50. “If the right of privacy means

anything, it is the right of the individual, married or single, to be free from

unwarranted governmental intrusion into matters so fundamentally affecting a

person as the decision whether to bear or beget a child" Lawrence, 2477.

       If Florida Statute § 63.042 subsection 3 is scrutinized utilizing the strict

scrutiny standard of review, the statute at issue in the instant case would not suffice

the strict scrutiny standard because it is so riddled with exceptions that in practical

effect it does not meet a narrowly tailored legitimate governmental interest Moreno

537.




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                                   CONCLUSION

      The court should invalidate Florida Statute § 63.042 subsection 3 on the

grounds that it is unconstitutional because it is a violation of the Equal Protection

Clause of the Fourteenth Amendment. In accordance with Justice O’Connor’s

concurring opinion in Lawrence because exhibits Florida Statute § 63.042

subsection 3 a desire to harm a politically unpopular group, homosexuals, a more

searching standard of review is necessary Id. at 2485. The desire to harm is

apparent by the fact that only homosexuals are categorically banned from adoption

in the statute App.48-49. Furthermore, Florida Statute § 63.042 subsection 3 is so

riddled with exceptions that in practical operation it is not thorough enough to meet

the legislative goal. As only homosexuals are singled out the statute it is logical to

infer that there is animus intent driving the statute.

      When a classification in a statute impinges on a fundamental right then the

strict scrutiny review triggered to examine constitutional validity Zablocki v.

Redhail, 434 U.S. 374, 381 (1978). The right to engage in acts of consensual

homosexual activities is a right that is protected because it reflects directly on the

fundamental right to privacy guaranteed in the Fourteenth Amendment of the

constitution. This fundamental right has been impinged on by the fact that

homosexuals are forced to chose between their conduct and their ability to adopt

children App. 50. While there is no fundamental right to adopt, there is a



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fundamental right to maintain engage in homosexual acts in the privacy of one’s

own home Lawrence, 2486. Under strict scrutiny review Florida Statute § 63.042

subsection 3 the law should be deemed valid because it so riddled with exceptions

that in practical effect the legislative goal cannot be meet and the statute is not

narrowly tailored enough to meet the legislative goal Eisenstadt, 438.

Furthermore, it is logical to infer that as homosexuals are the only named class of

people categorically banned from adopting children in the state of Florida there is

animus intent harbored within the legislature toward homosexuals. Animus intent

can never serve a legitimate governmental interest can never serve a legitimate

governmental interest and is on its face a violation of the Equal Protection Clause

of the Fourteenth Amendment. For the foregoing reasons, petitioner respectfully

asks this court invalidate Florida Statute § 63.042 subsection 3 on the grounds that

it is a violation of the Equal Protection Clause of the Fourteenth Amendment.



                                                      Respectfully submitted,


                                                      __________________

                                                      Counsel for Petitioner




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