In a ruling that has ``surprised and disappointed" the American Civil Liberties Union, a federal court judge in Florida Aug. 30 upheld the state's law barring gays and lesbians from adopting children.
Since 1977 -- the height of anti-gay crusader Anita Bryant's notorious ``Save Our Children" campaign against gay rights -- Florida adoption law has stipulated that ``No person eligible to adopt under this statute may adopt if that person is a homosexual."
Seeking to overturn the law, the ACLU filed suit against the state's child welfare agency, the Department of Children and Families (DCF) in May 1999 on behalf of four gay men: Steven Lofton, a state-licensed foster parent seeking to adopt a ten year-old foster child he and his partner, Robert Croteau, have cared for since birth; Douglas Houghton, a clinical nurse specialist seeking to adopt the child he has raised for the past six years; and Wayne Larue Smith and Daniel Skahen, also state-licensed foster parents, whose adoption applications were denied because they are gay. Lofton's foster child, and the child living in Houghton's care were also plaintiffs in the suit. Known as Lofton v. Kearney, the suit alleged that the law ignored children's best interests by excluding an entire class of adults from adopting, instead of evaluating adoptive parents on a case-by-case basis. It also charged that the statute violated both the children's and the adults' constitutional rights to equal protection under the law, privacy, intimate association and family integrity.
But U.S. District Court Judge Lawrence James King disagreed with those arguments, and dismissed the ACLU's lawsuit in a summary judgment requested by the state. While acknowledging the ``strong emotional bonds" between the men and the children in their care, King also determined such ties do ``not inherently grant them a fundamental right to family privacy, intimate association and family integrity." Unlike natural families, King wrote, foster parent-child relationships do not have ``justifiable expectations of an enduring companionship because the emotional ties originate under state law." Citing previous case law, King concluded the relationships are not protected under the constitution.
The state defended itself against the allegation that the law violates the Constitution's equal protection clause by asserting that its provision against gay adoptive parents serves two legitimate purposes, the first being that ``it reflects the state's moral disapproval of homosexuality."
``Fortunately, the court rejected that argument," said ACLU staff attorney Leslie Cooper, co-counsel in the case. Indeed, King noted that ``public morality alone is insufficient to justify the homosexual adoption provision."
But he did uphold the state's second claim that the gay adoption provision serves the best interest of Florida's children. A child's best interest, the state argued, is to be raised in ``a home stabilized by marriage, in a family consisting of both a mother and a father." The ACLU King determined, did not show that they could ``demonstrate that gay families are as stable, able to provide proper gender identification or are no more socially stigmatizing than married heterosexual families. It is Plaintiff's burden," he wrote, ``as the ones attacking the homosexual adoption provision to negate every conceivable basis which might support it. Plaintiffs have chosen not to do so and thus, have left unchallenged Defendants' assertion that the best interest of the child is to be raised by a married family."
But the ACLU's Cooper says that whether or not gays and lesbians can provide a stable home was never the issue, rather the real issue is that the state never proved a ``rational basis" for excluding gays and lesbians from becoming adoptive parents and King erred by not addressing the issue. For instance, contrary to the state's assertion that a child's best interest is served by placement in a home with a married mother and father, Florida law does not exclude unmarried adults from adopting. ``Straight single people can adopt, and many of them do," said Cooper. (The ACLU reports that 25 percent of Florida foster children are adopted by single parents. In Miami/Dade county it's 40 percent.) Furthermore, says Cooper, in the face of ``mounds of evidence" that ``parental substance abuse and domestic violence pose serious threats to children," the state does not expressly exclude substance abusers and domestic batterers from adopting. ``In contrast," said Cooper, research shows ``there is no harm associated with gay parents," thus the state has no basis to exclude them.
In fact, she points out, DCF -- which allows openly gay people to serve as foster parents -- has never removed a child from a gay foster home for reasons related to the foster parent's sexual orientation. In legal depositions, said Cooper, four high-ranking DCF officials, including the adoption specialist ultimately responsible for all DCF adoptions, could not think of one reason to exclude gays from adopting children. When asked why DCF decided to fight the lawsuit, Cooper replied, ``We don't know who made that decision. Certainly not the child welfare professionals in the agency."
``It's pretty clear that child welfare professionals do not support this law and it just gets in the way of providing as many children as possible with parents," said Cooper. There are currently about 3,400 children awaiting adoption in Florida.
Regardless of where DCF officials stand on the issue, the agency supported King's ruling. ``The department agrees...that the federal court upheld the laws that the Legislature passed regarding this issue," said DCF spokeswoman Cecka Green.
Florida is in minority
It would seem that Florida's adoption law goes against public sentiment and the growing body of research that shows children raised in gay homes fare no better or worse than children raised in heterosexual homes. The Child Welfare League of America, the nation's oldest and largest child advocacy organization, in 1988 adopted a standard declaring that sexual orientation should not factor into an applicant's ability to be a successful parent, as did the North American Council on Adoptable Children in 1998. New Hampshire repealed its ban on gay adoptions in 1999, and earlier this year, a bill to ban gay adoptions was narrowly defeated in the Arkansas legislature. According to the ACLU's Eric Ferrero, in the last three years, at least 12 states have considered measures restricting gay and lesbian adoptions; all of them failed, with the exception of Mississippi, which bans adoptions by gays and lesbians outright, and Utah, which bans adoptions by unmarried couples, effectively prohibiting gays from adopting.
Most recently, Suzanne Johnson, an associate professor of psychology at New York's Dowling College presented results of a national survey at the Aug. 25 annual meeting of the American Psychological Association -- another organization which supports the right of gays to adopt -- that concluded, overall, gays and lesbians are as good in the parenting department as heterosexuals raising children. With a diverse sample of 415 gay parents raising children across the country, The National Survey of Gay and Lesbian Parents is the largest study of gay and lesbian families to date. The most surprising finding of the study, said Johnson, was that 15 percent of gay and lesbian parents reported using physical methods such as spanking to discipline their children, in contrast to previous research findings documenting that 60 percent or more of straight parents use physical discipline methods. Johnson points out that physical punishment is often associated with poor self-esteem and poor peer relations in children. She believes such a finding bodes well for children raised in gay households. ``It suggests good things for kids" with gay parents, she said. ``Gay and lesbian families are functioning quite well."
While gay families function in much the same way as straight families, the only risk to being raised by gay parents, she concludes, is the ``external homophobia" gay families often face outside of their homes.
In her assessment of the Florida ruling, Johnson echoed Cooper's contention that the state did not present any concrete evidence to support excluding gays from adopting. ``What disturbs me the most is that public policy should be based on hard data," said Johnson. What often happens is individuals put in the position of making important decisions on gay issues often ``base their decisions on ignorance and bigotry," turning to literal interpretations of the Bible or caving in to public pressure. What policy makers should be doing, Johnson puts forth, is turning to science. ``There's almost 30 years of research that shows the risks are not within these [gay] families," she said. ``They need to turn to the same types of sources that they do for other cases -- what does the research tell us?"
Meanwhile, the ACLU is filing a motion for reconsideration, in which they will ask King to consider new facts in the case and review certain aspects of his decision. Should the motion be denied, the ACLU says that Lofton v. Kearney might still not be over. ``If necessary we would consider an appeal," said Cooper.