Does Lawrence v. Texas recognize a fundamental constitutional right to sexual autonomy? There was a hot debate about this following the Lawrence decision; I argued here that it does.

     Today’s Eleventh Circuit decision upholding Florida’s statutory ban on adoptions by practicing homosexuals shows the importance of this question. The Eleventh Circuit correctly points out that the right to adopt is a creature of statute; there’s no constitutional right to adopt. But the Supreme Court has often held that even when the government is distributing a strictly optional benefit, the Constitution often (though not always) prohibits the government from discriminating based on the exercise of a constitutional right.

     For instance, I suspect the law generally may not bar adoptions by people who have expressed certain political beliefs, who practice certain religions, or who own guns (either if the Second Amendment is interpreted as protecting an individual right, or if the state involved is one of the many states whose constitutions clearly secure an individual right). The government generally may not use a person’s exercise of his First or Second Amendment rights as a justification for denying them the benefit of an adoption. The government may have some power to consider a person’s constitutionally protected conduct in making this decision — in government employment decisions, for instance, the Court has held that the government has consider power to consider an employee’s speech when the speech risks interfering with the efficiency of the government employer. But courts demand more than just a bare “rational basis” for such government decisions; they generally require some pretty substantial evidence that the person’s exercise of his constitutional rights is substantially relevant to the government’s decision.

     If Lawrence does recognize a constitutional right to sexual autonomy that’s akin to the freedom of speech, the free exercise of religion, and the like — which is what “fundamental constitutional right” generally means — then the government would have to show that allowing adoptions by practicing homosexuals really would pose some pretty serious problems. But if it doesn’t recognize such a right, but only holds that criminal prohibitions are illegitimate (perhaps because they fail even rational basis scrutiny), then it could defend its no-gays adoption policy under a simple rational basis test.

     Note, incidentally, that the Florida Constitution specifically secures a right to privacy, and Florida courts have interpreted it as protecting sexual autonomy. Given this, I think the Florida courts’ earlier decision upholding the no gay adoptions statute is unsound (Dep’t of Health & Rehabilitative Servs. v. Cox, 627 So.2d 1210 (Fla. App. 1993), aff’d as to the right to privacy, 656 So.2d 902 (Fla. 1995)). The courts erroneously assumed that, just because an adoption is a government-provided benefit, the government is free to deny this benefit based on a person’s exercise of his right to privacy. That, I think, is wrong, just as it’s wrong to say “government employment is a benefit, so the government is free to deny it to pacifists / Catholics / gun owners.”

     (Thanks to How Appealing for the pointer.)