ACLU Disappointed the Supreme Court Will Not Hear an Appeal in Case Challenging Florida's Anti-Gay Adoption Law

Vows to Ensure Families Involved in the Lawsuit Stay Together

Press release

By: American Civil Liberties Union

Date: January 11, 2005

Source: American Civil Liberties Union. "ACLU Disappointed the Supreme Court Will Not Hear an Appeal in Case Challenging Florida's Anti-Gay Adoption Law." January 11, 2005 〈http://www.aclu.org/lgbt/parenting/12438prs20050110.html〉 (accessed June 20, 2006).

About the Author: The American Civil Liberties Union (ACLU) was founded in 1920 as a national legal advocacy organization to advance the protection of individual civil liberties in a wide range of circumstances.

INTRODUCTION

The legal contest over the constitutionality of a Florida law that prohibits the adoption of children by gay persons mirrors a broader national debate that has unfolded in the United States since the mid-1970s. The expression 'gay rights' is one that includes a number of issues of which gay adoption is one; same-sex marriage, in both the civil sanctioned and religious contexts, the economic consequences for partners to gay unions that are terminated, survivorship rights and pension benefits, and the criminalization of sexual relations between gay persons have each commanded significant national attention. A proposed amendment to the United States Constitution defining marriage as a union between a man and a woman was the subject of an intense national debate. The gay adoption debate has been among the most controversial, as the ability to adopt a child engages the broader state interest of child welfare, unlike other aspects of gay relations that tend to be important primarily to the partners involved.

Custody and adoption are well settled legal principles in both the United States and most other countries. Adoption evolved as an entirely statutory process, with no equivalent in common law. Individual states are generally empowered to determine the rules regarding adoption in their jurisdiction, so long as such laws are consistent with any constitutional provisions. As a general proposition, adoption is a permanent reordering of the parent-child relationship, defined as a legal process in which the rights and duties concerning a child's natural parents are terminated and replaced with those granted to the adoptive parent(s). Such proceedings may be instituted by either individuals or various types of child placement agencies. The state must ultimately approve all adoption applications.

Custody, distinct from adoption, is a more elastic concept involving the care, control, and maintenance of a child; it is not a permanent alteration of the status of the child within the family. Foster care, in which children are placed by the state with approved families, is a form of child custody. Florida law provides that approved gay couples may act as foster parents; at the time of the January 2005 Supreme Court refusal, the state had approved numerous gay persons to act as foster parents, some of whom had cared for children for a number of years.

The ACLU press release references Anita Bryant and the 1977 Florida legislation. Bryant, a well known media figure through her work as spokesperson for the Florida citrus industry, was a conservative Christian and a champion of the anti-gay lobby. She was influential in generating political support in Florida for the ban on gay adoption, claiming that a family is an exclusively heterosexual concept. Ironically, her promotional work for the Florida orange industry was terminated due to the notoriety of her work with anti-gay organizations.

At the heart of the ACLU position in its lobby to overturn the Florida gay adoption ban is the notion that American concepts regarding what constitutes a family or a proper supportive environment for a child have been entirely redefined since the passage of the 1977 legislation. Even the nomenclature in the debate has been refined since 1977: Homosexual has been largely replaced by the broader term gay, which includes the entire side of the same-sex debate, but most references include the expression gay and lesbian.

Gay adoption has been a significant battleground in other countries as well. Canada, Great Britain, and Belgium are examples of jurisdictions where gay adoption remains a significant political issue.

PRIMARY SOURCE

ACLU DISAPPOINTED THE SUPREME COURT WILL NOT HEAR AN APPEAL IN CASE CHALLENGING FLORIDA'S ANTI-GAY ADOPTION LAW

Vows to Ensure Families Involved in the Lawsuit Stay Together

NEW YORK—The American Civil Liberties Union today said that it was disappointed by the U.S. Supreme Court's refusal to hear an appeal in its lawsuit challenging a Florida law that bans gay people from adopting. "It is disappointing that the Court will not review the earlier ruling upholding the ban. There are more than 8,000 children in Florida foster care, some of whom surely would have found permanent homes if the law had been struck down," said Matt Coles, Director of the ACLU's Lesbian and Gay Rights Project. "No judge in this case ever looked at the social science on the ability of gay people to parent. Since this case was decided, however, a court in Little Rock heard from the top experts in America and concluded that sexual orientation has nothing to do with whether someone is a good parent."

"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," added Chris Zawisza, an attorney on behalf of Florida's Children First, which is representing the children involved in the case. "This law is bad public policy that does real harm to children."

The ACLU asked the Supreme Court to hear an appeal in the case after the Federal Court of Appeals for the 11th Circuit narrowly upheld the ban. By a vote of six-to-six, the full court declined to reconsider an earlier decision by a three-member panel of the appeals court upholding the law. The law was enacted by the state legislature in 1977, in the midst of Anita Bryant's anti-gay crusade. The ACLU filed a challenge to the law in 1999.

"As far as the kids directly involved in this lawsuit are concerned, this case is far from over," said Leslie Cooper, a staff attorney for the ACLU's Lesbian and Gay Rights Project who worked on the case. "We'll fight tooth and nail through local juvenile courts to ensure these families are not torn apart." Any move by the state to change the placement of any of the children involved in the case would have to be approved by a family court or other judge, in which case the ACLU would fight vigorously to keep the families intact.

Although the state bars gay people from adopting, it has no restriction on gay people serving as foster parents. In fact, two of the three families involved in the case are raising Florida foster children. Steven Lofton and his partner Roger Croteau are raising five children, including three foster children from Florida. Although the children—two 17-year-olds and a 13-year-old—have never known any other family, they cannot be adopted by Lofton or Croteau because of Florida's law. Wayne Smith and Dan Skahen are now foster parents to two children. A family court judge issued a novel court order in 2002 granting Smith and Skahen "permanent legal custody" to one of their two children in an effort to provide the child with greater family security. Doug Houghton has been the legal guardian for nine years of a boy who is now nearly 13 years old. Even though the child's biological father would prefer for Houghton to be the legal parent, Houghton can't adopt because of the law.

"By denying our request to hear this case," said Howard Simon, Executive Director of the ACLU of Florida, "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—not even our current legislators, but the prejudices of Florida lawmakers a generation ago."

The ACLU is committed to abolishing this law and is considering other legal options to challenge it.

SIGNIFICANCE

The ban on gay adoptions in Florida is a legal issue that has profound societal repercussions across the United States. The ACLU is committed to repealing the Florida law; conservatives, including a variety of religious organizations, see gay adoption as a part of a broader incursion against traditional moral and family values.

As with many legal challenges, the Florida ban carries both legal and practical significance. For supporters of the existing law, the legislation represents an example of the ability of a state to reflect the desires of its citizens in defining the concept of family. These groups have stated in a variety of forums that local legislatures, not the Supreme Court, should determine these rules.

The ACLU and its supporters have waged a multidimensional attack upon the Florida law, as they have done with similar enactments in other states. They point to an array of statistical information in support of its position. Child advocacy groups in the United States place the number of children currently awaiting adoption at over 120,000. The number of American children who have a gay parent is broadly estimated to be between 4 and 10 million.

The Supreme Court decision confirms the dichotomy inherent in Florida adoption law that allows approved gay persons to act as foster parents, even in long-term placements, but bars them from making an adoption application. The legal device employed to create 'permanent legal custody', as described in the primary source, is clearly a legal fiction intended to avoid the Florida adoption restrictions, as there is no such statutory power given to judges under Florida child welfare law.

One of the most significant battlegrounds in the gay adoption debate is whether children suffer adverse effects from an adoption into a gay union. Opponents of gay adoption stress a number of religious objections to such a practice, including biblical prohibitions against homosexuality, with the corollary that the exposure and deliberate inclusion of a child in such circumstances is also sinful. Islam expressly describes homosexual conduct as a mortal sin. Critics also point to ethicists in the medical community who state that while childen adopted into a gay union may be appropriately cared for, such environments are inferior to a traditional heterosexual two-parent home.

Pro-adoption forces have marshaled a significant body of scientific and sociological expertise to support their contention that children incur no psychological harm when adopted into a gay union. They point to the proposition that a child who needs nurture and support receives them from a person, not a sexual orientation. Opponents of the Florida legislation also cite the 2003 Supreme Court decision Lawrence v. Texas that struck down Texas criminal sanctions against sodomy. The Supreme Court will almost certainly rule on gay adoption at some time in the future, given the razor-thin margin by which the appeal was dismissed at the state level; how the issues in Lawrence, which governs private acts between consenting adults, relate to the clear state interest in the adoption process is of interest.

The prohibition against gay adoption is also mandated by Utah and Missouri, but the Ninth Amendment of the Constitution, which states that "The enumeration … of certain rights, shall not be construed to deny or disparage others retained by the people," has not been litigated with the same frequency as other constitutional provisions that touch upon notions of equality. Gay adoption advocates argue that the Florida law denies a fundamental right, namely the right of an otherwise qualified person to pursue an adoption proceeding.

Advances in medical technology have also affected this issue. Procedures such as artificial insemination and surrogate parenthood allow gay persons or couples to become parents in most American states and throughout the Western world. To proponents of the repeal of the Florida gay adoption laws, it is an indefensible distinction to permit gay persons to be parents in one circumstance but not in the other.

FURTHER RESOURCES

Books

Deakin, Michelle Bates. Gay Marriage, Real Life: Ten Stories of Love and Family. Boston: Skinner House Books, 2006.

Pinello, Daniel R. Gay Rights and American Law. New York: Cambridge University Press, 2003.

Senak, Mark S. Every Trick in the Book: The Essential Gay & Lesbian Legal Guide. New York: M. Evans and Company, 2002.

Web sites

PBS. "Views on Gay Adoption." 2005 〈http://www.pbs.org/now/politics/fightforfamily2.html〉 (accessed June 19, 2006).