January 14, 2005

Supreme Court allows Florida adoption ban to stand

by Anthony Glassman

Washington, D.C.--The Supreme Court on January 10 declined to hear an appeal of a challenge to Florida?s ban on adoptions by gay men and lesbians. This allowed an Eleventh Circuit ruling in favor of the ban to stand.

The suit was brought in 1999 by three families who cannot adopt the children to whom they are either foster parents or legal guardians.

While forbidding gays from adopting, Florida law still allows gay men and lesbians to be foster parents.

?It is disappointing that the court will not review the earlier ruling upholding the ban,? said Matt Coles, director of the Lesbian and Gay Rights Project of the ACLU, which represented the families. ?There are more than 5,000 children in Florida foster care, some of whom surely would have found permanent homes if the law had been struck down.?

The law was passed in 1977 during the height of former Miss America runner-up Anita Bryant?s anti-gay crusade, when the then-popular singer couched her homophobic rhetoric in terms of ?protecting? children from gay men and lesbians.

A federal court in Key West ruled against the men in the suit in 2001. After they appealed, the Supreme Court issued a ruling in Lawrence v. Texas, which struck down state sodomy laws and said that expressing homophobia was not a proper basis for public law.

A three-judge panel of the Eleventh District appeals court in Atlanta upheld the Key West decision a year ago, and the men requested a hearing before the full twelve-member court. However, the court tied 6-6 when deciding whether or not to hear the case, so the petition failed.

One of the judges who voted against hearing the appeal was appointed to the court by President Bush during an 11-day Senate recess in February, 2004. Had he not been present, the case would have been heard by the full court.

Florida officials continue to justify the law by arguing that children do best when raised in a home with a married mother and father. However, a provision stating a preference for married couples as adoptive parents was repealed in 2003. One in four adoptions in the state is made by a single person.

Last month, an Arkansas judge ruled against that state?s ban on placing children in foster homes with a gay man or lesbian. The judge noted that there is a large collection of social research indicating that gay men and lesbians are fully capable of raising children properly, and that children raised by gays do as well as children raised by heterosexuals.

Coles pointed out that none of the judges who heard the Florida adoption case, Lofton v. Secretary of the Florida Department of Children and Families, looked at that research.

?The Florida ban flies in the face of the positions of every major child welfare organization, many of which have come out publicly against this law,? said Chris Zawisza, an attorney with Children First, the organization representing the children in the suit. ?This law is bad public policy that does real harm to children.?

?By denying our request to hear this case, the Supreme Court, sadly, has allowed the lives of thousands of children adrift in Florida?s scandal-ridden foster care system to be governed by the ugly prejudices of legislators,? said ACLU of Florida executive director Howard Simon, ?not even our current legislators, but the prejudices of Florida lawmaker a generation ago.?

Of the plaintiffs in the case, all are caring for children they would like to adopt but cannot.

Steven Lofton and Roger Croteau are fostering three children, and are raising two other children as well. The two 17-year olds and the 13-year old know only Lofton and Croteau as family. Lofton won an award as ?Outstanding Foster Parent of the Year? from the agency which places children in his home, and he has fostered eight children with HIV.

Wayne Smith and Dan Skahen foster two children, one of whom the courts granted to the couple with ?permanent legal custody? to give him more stability.

Doug Houghton is the legal guardian of a 13-year-old whose biological father has given his blessing to a possible adoption.

The Supreme Court was silent on the reason for their rejection of the appeal.

?It?s a crime to let prejudice keep children from being adopted,? said Patricia Logue, senior counsel for Lambda Legal Defense and Education Fund, a gay civil rights advocacy group that filed an amicus curiae brief in the case. ?Gay and lesbian people across the country are providing permanent, loving homes to gay children. No other state in the country has a law that completely bans lesbian and gay people from adopting children.?

Mississippi bars same-sex couples from adopting children, although it allows individual lesbians and gay men to adopt.

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