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Until Wednesday afternoon, the significance of Judge William H. Pryor Jr.’s recess appointment to the 11th U.S. Circuit Court of Appeals was largely symbolic. His appointment by President Bush outraged senators who objected to Pryor’s record on issues such as gay rights, abortion and federalism. As Alabama attorney general, Pryor defended statutes criminalizing homosexual sodomy, spoke out against decisions legalizing abortion and won cases trimming congressional power over the states. Democrats blocked a vote on his nomination, but the president’s recess appointment will allow him to be on the court through 2005. Since Pryor joined the bench in February, his decisions have reflected the largely uncontroversial, everyday work of federal courts. But now Pryor has made an impact in the type of case that concerned his opponents. On Wednesday, he provided a key vote against three homosexual couples challenging Florida’s law banning adoption by gays and lesbians. Deciding whether to reconsider an earlier 11th Circuit ruling that said the couples did not have a “fundamental right” to adopt children, the court split 6-6. Since a majority of judges is needed to reconsider a matter, the couples’ request failed. Had Pryor not been placed on the court, the vote would have gone 6-5 in favor of the couples’ request. “Obviously it’s disappointing to be one vote short,” said Leslie Cooper, an American Civil Liberties Union lawyer representing the gay couples. Casey Walker, a lawyer for the Florida Department of Children and Family Services, could not be reached to discuss the decision. Cooper said the ACLU had not yet decided whether to ask the U.S. Supreme Court to review the decision, but she pointed out that the 11th Circuit was “deeply divided” on the issue. The 6-6 vote broke mostly along lines that perhaps confirm the importance of a president’s ideological considerations in making appointments. Voting to let stand the ruling that went against the gay couples were Chief Judge J.L. Edmondson (President Reagan) and Judges Stanley F. Birch Jr. (the first President Bush), Susan H. Black (Bush), Edward E. Carnes (Bush), Frank M. Hull (President Clinton) and Pryor, the only nominee of the current president on the 11th Circuit. Voting to vacate the panel’s ruling and hold another hearing before the full court were Judges Gerald B. Tjoflat (President Ford), R. Lanier Anderson III (President Carter), Joel F. Dubina (Bush), Rosemary Barkett (Clinton), Stanley Marcus (Clinton) and Charles R. Wilson (Clinton). GAY FOSTER PARENTS CAN’T ADOPT The case involved three gay couples who wanted to adopt children that are already under their care; Florida allows homosexuals to serve as foster parents. In January, Birch, Carnes and 9th Circuit Senior Judge Procter Hug Jr., who was sitting as a visiting judge, concluded that the Florida Legislature had the right to decide that it was not in the best interests of displaced children to be adopted by homosexuals. Writing for the panel, Birch said, “[W]e have found nothing in the Constitution that forbids this policy judgment. “[A]ny argument that the Florida Legislature was misguided in its decision is one of legislative policy, not constitutional law,” Birch continued. Lofton v. Secretary of the Department of Children and Family Services, No. 01-16723 (11th Cir. Jan. 28, 2004). BARKETT: LAW CONSTITUTES PREJUDICE On Wednesday, Barkett penned a passionate dissent, arguing that the Florida law violates homosexuals’ 14th Amendment rights to equal protection and due process. Barkett cited high court decisions that had struck down laws restricting politically unpopular groups — such as “hippies,” unmarried users of birth control, mentally disabled people and homosexuals — as proof that the Florida ban on gay adoption violates equal protection rights. The cases she cited involved federal rules excluding unrelated adults who were living together from receiving food stamps, a state law prohibiting unmarried women from using birth control, a Texas zoning ordinance requiring mentally disabled people to get a special permit to live in a residential area, and a Colorado constitutional amendment banning local laws from protecting homosexuals from discrimination. In those cases, she argued, the high court inferred that the laws in question were not justified and based on prejudice against the affected groups. Similarly, Barkett wrote, “Florida’s proffered justifications for the categorical ban here are false, do not rationally relate to the best interests of children, and are simply pretexts for impermissible animus and prejudice against homosexuals.” Anderson and Dubina wrote separately, agreeing with Barkett’s argument that the Florida law violated the couples’ equal protection rights. Marcus, joined by Tjoflat and Wilson, wrote that the court should take the case because “there is a serious and substantial question whether Florida can constitutionally declare all homosexuals ineligible to adopt while, at the same time, allowing them to become permanent foster parents, and not categorically barring any other groups such as convicted felons or drug addicts from adopting.” WHY THEY WOULDN’T RECONSIDER Birch penned a response to the dissenters in which he reiterated the panel decision from January. He pointed out that the victory won by gay rights groups last year in a Supreme Court decision striking down Texas’ anti-sodomy law did not make private sexual intimacy “a fundamental right” that held government restrictions against it to the highest level of scrutiny. Birch added that on a personal level he believes the Florida policy against homosexual adoption is “misguided,” and he credited the couples with “courage, tenacity and devotion” to the children placed in their care. Lofton v. Secretary of the Department of Children and Family Services, No. 01-16723 (11th Cir. July 21, 2004). The 11th Circuit ruling came down the day after Georgia’s Supreme Court election in which gay marriage had become a hot issue. In April, the 11th Circuit delivered its decision about the free speech rights of people protesting the Masters golf tournament four days after the tournament concluded. But Birch, who was not on the April panel in the Masters case, said in a brief interview that the judges do not wait to release their decisions: “We just do it when it gets done.”

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