In Lofton v. Sec'y Of The Dep't Of Children And Family Servs., the Eleventh Circuit ruled that the Florida statute preventing practicing homosexuals from adopting children is constitutional as enacted by the Florida legislature and as subsequently enforced.

For purposes of Florida Statute § 63.042(3), "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.'"

There are three elements to this definition of disqualifying homosexual activity: 1) "known to engage" – a publicity element; 2) "current" – a temporal element; and 3) "voluntary" – a consensual element.

Thus, when it comes to child welfare, the legislature's definition implicitly favors: 1) secrecy/discretion in one’s sexual behavior; 2) the notion that a homosexual can redeem him/her self over time by abstaining from homosexual activity; and 3) an exclusion for people raped by members of the same sex.

Even in the face of massive media attention, Section 63.042(3) has weathered the storm over the twelve years of its enactment, including several legislative repeal attempts and three separate legal challenges. Similarly, the two most recent Supreme Court cases on gay rights, Lawrence v. Texas and Romer v. Evans, held no sway under Due Process arguments.

In the ongoing public policy debate over the "compatibility of homosexual conduct with the duties of adoptive parenthood," many people will surely disagree with Lofton. However, it is hard to say that this decision is simply a homophobic ruling from a conservative court.

Though Lofton can be read as a setback for gay rights, its holding is confined to child welfare, an area where states have an extreme amount of power to regulate. Additionally, Justice Hug from the liberal Ninth Circuit was designated to participate in this three-judge opinion, presumably to lend liberal credibility to the decision. In closing, the Court prescribes that the legislature is the proper forum for this debate.