Would that there were more activist judges.

I’m rather pissed that this past Monday the United States Supreme Court declined to hear a case challenging Florida’s ban on adoptions by same-sex parents, Lofton v. Secretary of The Florida Department of Children and Family Services.

Why don’t they grow some balls like our Supreme Court here in Massachusetts? Why can’t they be… oh, what’s the word I’m looking for… more, you know, activist?

It really makes me sad that 2006 would be off to such a poor start, in the realm of jurisprudence, that is. Of course, some are saying that we shouldn’t attach too much significance to the Supreme Court’s refusal, given that they have broad discretionary powers to choose which cases they hear. They refuse to hear cases all the time and are not required to give a reason.

It doesn’t necessarily mean that they agreed with the decision of two lower courts in Florida who held that their state’s ban on same-sex adoptions did not violate the U.S. Constitution and that Lawrence and Garner v. Texas (which struck down Texas’ sodomy laws) didn’t apply in the case of a same-sex couple seeking to adopt a child. The plaintiffs had argued that the Lawrence decision protected them from discrimination based on sexual orientation. Judges in Florida disagreed and upheld the existing ban on same-sex adoptions.

Prima facie, it might appear that by refusing to review this case, the U.S. Supreme Court is offering its tacit approval of Florida’s discriminatory adoption law. However, there haven’t been many cases testing the breadth of the protection offered by Lawrence. It might be that the Supreme Court felt that Lawrence’s broader applicability, specifically in the area of same-sex adoption, was not yet ripe for review. A case is normally ripe for Supreme Court review only when several lower courts have had a chance to issue conflicting opinions on a particular subject.

Those who make this argument—and I’m not saying that I fall into that category—are probably right in one respect: Don’t spend too much time speculating on the Supreme Court’s motives in this particular instance, because when Torquemada (aka Samuel Alito) gets confirmed—and we all know that he will—we’re all screwed anyway.