dissenting:
I respectfully dissent. I regret that the press of court business prevented the preparation of this dissent in time for distribution with the majority opinion; and that there has not been even now time to fully develop the premises for this Federal consideration of a state matter so complex.
The majority opinion opens with a question that simply is not asked in this case.1 The question accurately put is this: may a state agency, charged with the responsibility of placing for adoption a child in its legal custody, take into consideration the race of the child and the race of prospective adoptive parents without violating the Constitution of the United States?
We are not confronted with a statute that makes interracial adoptions illegal, Compos v. McKeithen, 341 F.Supp. 264 (E.D.La.1972) (three-judge court); nor with a private adoption in which the state investigatory agency has withheld consent because of race, see Ga.Code Ann. § 74^403(4) (1973); nor with a state court decision that an adoption cannot take place because of ethnic origin disparity between a white child and a black stepfather, who was the natural mother’s second husband, see In re Adoption of a Minor, 97 U.S.App.D.C. 99, 228 F.2d 446, 448 (1955); nor, for that matter, with the question of whether an agency with legal custody of a child can use race as an automatic, and therefore the sole, basis for denying the application of a prospective adoptive parents to adopt a particular child. The finding of fact by the district court that race was not the sole basis for denying the application of the Drummonds for this child is not clearly erroneous, and the appellants do not so contend.2 In fact, the dis*858trict court viewed the law as prohibiting an automatic-type placement of black with black, white with white or mixed race with black. Because the record does not support the application by the agency of an automatic rule, no question as to automatic standards is before us for review.
The record does support the fact that race was taken into consideration in a rather substantial way in the agency decision that the child would be better placed in a home other than the plaintiffs’. The question is whether the agency, not acting under the imperative of any law or unyielding automatic rule, but rather in the exercise of its own discretionary concepts of successful child placement, may constitutionally take into consideration as an important factor the race of the child and prospective parents. By the force of its decision, the majority must conclude that such action by a state agency violates the equal protection clause of the United States Constitution. For without that concept upon which to base a § 1983 claim, the plaintiffs have no federal case.
On this narrow point of constitutional law I would affirm the decision of the district court. No interpretation of the Constitution by any case cited to this Court prevents a state child placement agency from looking to the best interests of a child in its custody, as judged by agency determined criteria, in deciding where that child should be placed for permanent adoption. If the agency decides that physical characteristics of prospective adoptive parents in relation to those of the child are important criteria for protecting the best interests of the child, the Constitution does not prevent it. To permit consideration of physical characteristics necessarily carries with it permission to consider racial characteristics. This record reflects nothing more than a large number of agency and social workers with unquestioned credentials endeavoring to find a permanent family home for Timmy that would be best for him for the rest of his life.
Consider first the due process claims of the Drummonds. The majority concedes that under Georgia law there is no property right of foster parents to adopt their foster child. See Drummond v. Fulton Co., 237 Ga. 449, 228 S.E.2d 839 (1976). The majority then proceeds to ascertain if there is any liberty interest at stake requiring due process protection. It finds such an interest under Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). But Loving involved an individual’s liberty interest in choosing whomever he wishes to marry regardless of race. It did not deny an individual’s liberty right to refuse to marry someone not of his choosing. Accordingly, if the Drummonds have a liberty right in choosing a prospective adopted child, regardless of race, so, too, does Timmy have a liberty right in choosing the best suitable parents. There is little doubt, now, that a child in Georgia would have a constitutional right to be adopted by parents of any race that he chose. But if it is a true “liberty” interest, he has the right not to be adopted by parents of a given race. And he has a right to exercise that right solely in terms of his own best interests. Because an infant is incapable of exercising that right for himself, however, under Georgia law either the parents who voluntarily give up a child for adoption or the agency given legal custody of a child must exercise that right *859for him.3 Thus the reliance on Loving to give the Drummonds a due process liberty right in connection with adopting a child must also be extended to give the child, through his natural parents or the state as his legal custodian, a corresponding due process liberty right.
Moreover, to the extent that Loving is a due process case, it is a substantive due process case, in which a state statutory scheme barring interracial marriages was struck down as being inconsistent with the Fourteenth Amendment. The constitutional basis for the Court’s holding was that the freedom of choice to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by invidious racial discriminations imposed by the state. The case was not a procedural due process decision. The Supreme Court did not suggest that by some amount of procedural due process, notice, hearings, impartial hearing officers, record and review, Loving could have been deprived of the right to marry the one who wanted to marry him. Loving is not authority for declaring that foster parents have a due process right to a hearing before a child placed in their care can be removed from their home, or before their application for a particular child, in which the state law gives the foster parents no legal interest, can be refused.
To the extent that the contention is made that the Drummonds are entitled to minimal due process before their application for adoption of any child can be denied, in my view, such due process as was due was rendered. The record fully supports the fact that complete consideration was given to the Drummonds’ application to adopt Timmy. The agency clearly had no per se rule against placing a black or mixed race child in a white home, as indicated by the fact that it had previously made such a placement and the additional fact that the record shows serious consideration of the Drummonds as adoptive parents. Their application was not dismissed out of hand, or treated arbitrarily. Extensive and long-term investigations were made of the conditions in the Drummonds’ home to determine if this type of placement would work in this case. A total of eighteen persons were involved in providing input into what emerged as a group consensus. The Drummonds were not without their partisans in the decisive meeting. The ultimate decision was not made in an informational vacuum. The social workers who made the decision about Timmy and the Drummonds were more intimately acquainted with them, their past history and any potential problems, than any hearing officer could ever be. I think that this form of rational decision making is all that is required. Due process does not mean the kind of adversarial hearing with which courts are so familiar. The factors that must be weighed in deciding if a mixed race child could have a *860successful life in a particular white home are so complex and ephemeral that adversarial procedures are inappropriate.
The case-worker system of social service established by the state for the processing of these very difficult personal and social decisions should not be destroyed under a constitutional edict. Limitations of time, money and human resources may well dictate the methodology of the state agency, but as long as all legal interests of the parties are reasonably protected, the state procedure is not subject to constitutional supervision.
The attorney appointed by this Court to represent Timmy on this appeal argues that Timmy is entitled to a due process hearing upon any change in foster home care regardless of the Drummonds’ interest. The suggestion that such a position is supported by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), is misplaced. In each of those cases and their progeny, the children involved had run afoul of the laws of the state, laws in which the state had an enforcement interest. The rights of the juvenile were in conflict with the state interest in enforcing its own laws. Such due process cases are inapplicable to a case such as this, where the state interest in finding the best home for Timmy coincides perfectly with his interest. Some adult must make the decision for him. Nothing here has shown that an adult court-appointed guardian ad litem and an attorney of his own could better protect this interest than the mechanism which has been established by the state. Certainly a difference, if one exists, does not support a declaration that one is constitutional and the other not. Whether the record made before the state agency suits the needs of a federal judiciary, which has no general authority for review and no supervisory powers over the operation of the agency, should be irrelevant.
The other area in which the majority finds entitlement to a hearing is the equal protection clause. Relying on Megill v. Bd. of Regents of the State of Florida, 541 F.2d 1073 (5th Cir. 1976), the majority finds a right to a hearing in that the decision against allowing the Drummonds to adopt Timmy was made for constitutionally impermissible reasons, to wit, racial matching of parent and child. The majority concludes that it is impossible to ascertain just what factors were used in reaching the decision but, because constitutionally impermissible ones might have been decisive, the Drummonds are therefore entitled to a hearing.
Reliance on Megill, however, necessitates adherence to the fundamental proposition asserted by appellants that race cannot be used as a substantial factor in the agency’s placement decision. The Drummonds would be entitled to a hearing under Megill only if the use of race as one of several factors is constitutionally impermissible. I do not think that it is. As one court has already noted, “we regard the difficulties inherent in interracial adoption as justifying consideration of race as a relevant factor in adoption, . . ” Compos v. McKeithen, 341 F.Supp. 264, 266 (E.D.La.1972) (three-judge court).4
*861This case is an unusually difficult one because the legal problems it poses are fraught with emotional overtones. The Drummonds are admirable people. They grew to love Timmy and bestowed upon him the care and warmth so needed by young children. They exemplified the highest goals of foster home care. But foster home care and permanent adoptive homes serve different functions for children. The qualities for one may differ considerably from the qualities for another. After extensive investigation and deliberation, the agency charged with protecting Timmy’s welfare ultimately concluded that the interests of Timmy would be best served by placing him permanently in another adoptive home. The question before us is not whether that decision was correct. Cf. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Tragic as the agency’s considered decision was for the Drummonds, I would hold that it did not deprive the Drummonds of any protectable Federal interest. I would affirm the judgment of the district court.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.BY THE COURT:
A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
. The majority opinion states: this appeal presents the question whether the federal courts can give relief to white foster parents who contend that they have been unconstitutionally denied by Georgia state officials the right to adopt a mixed race child solely on account of race.
. The controversy in the social service world is well documented. In an effort to find permanent homes for all children, particularly the thousands of homeless black and mixed race children, many adoption agencies and social workers have encouraged transracial adoptions as a solution to this most urgent problem. Chastang, The Dilemma of Biracial Adoption, 17 Social Work 100 (May 1972); Jones, On Transracial Adoption of Black Children, 51 Child Welfare 156 (March 1972). Transracial adoptions began in the early 1950s and increased in volume during the 1960s. Grow & Shapiro, Black Children-White Parents 1 (1974). Despite their growing popularity, transracial adoptions have been very controversial and are regarded by some as only a second-best alternative, and by others as not a viable alternative at all, in light of today’s social realities. See Klibanoff, Let’s Talk About Adoption 119-121 (1973); Chastang, supra; Jones, supra. In the spring of 1972, at its first annual convention, the National Association of Black Social Workers expressed its “vehement opposition to the practice of placing black children with white families.” Grow & Shapiro, supra, at 5. The Child Welfare League of America, although emphasizing that inracial placement is preferable since “in today’s social climate, children placed in adoptive families *861with similar racial characteristics can become more easily integrated into the average family group and community,” CWLA Standards for Adoption Service 92 (revised 1973), undertook to study a sample of transracial adoptions and found “apparent success” in the large majority. See Grow & Shapiro, supra. The relative degree of success, however, depended on many variables, including among others the parents’ attitude, the size of the family, the parents’ occupations, the motivation for adoption, the child’s intellectual level, the community’s characteristics, which tend to indicate the important role the agency must play in weighing these factors when placing a black or mixed race child in a white home. See Grossman, A Child of a Different Color: Race as a Factor in Adoption and Custody Proceedings, 17 Buffalo L.Rev. 303 (1968).