Gays and Adoption: the Latest in Florida

[Editor's Note: For up-to-date information on the fast-changing issue of same-sex marriage and adoption, please visit http://www.ljnonline.com/alm?map and click on the interactive map.]

On Jan. 28, the 11th U.S. Circuit Court of Appeals upheld Florida's right to prohibit gay men and lesbians from adopting children. Lofton v. Secretary of the Department of Children and Family Services, 01-17623. In a ruling written by Judge Stanley Birch, the court turned down a challenge to the 1977 law filed by four gay men seeking to adopt the children they are raising.

The law was enacted at the height of Anita Bryant's anti-homosexual campaign decades ago, and has withstood several challenges in state court. The decision comes as states react to court rulings favoring gay marriage and a Supreme Court decision in June striking down laws criminalizing gay sex.

Florida argued the state has a right to legislate its “moral disapproval of homosexuality” and its belief that children need a married parent for healthy development. In court filings, the state had said it prefers to place children in homes with both mothers and fathers, stabilized by long-term marriage. “In such homes, children have the best chance to develop optimally, due to the vital role dual-gender parenting plays in shaping sexual and gender identity and in providing heterosexual role modeling,” the state said.

The Defendants' Argument

The American Civil Liberties Union, which represents the gay couples, argued that Florida has allowed couples with drug and alcohol problems or histories of domestic violence to adopt children. Florida judges also allow some gay couples to become a child's permanent legal guardians, the group noted. “Given the state's frank acknowledgment that lesbians and gay men pose no risk of harm to children, and its willingness to place children with lesbians and gay men permanently, it is impossible to credit the idea that the ban was adopted to promote child welfare,” the ACLU said. “The only purpose the ban could possibly serve is the forbidden one: expressing the state's disapproval of lesbians and gay men.” The ACLU also notes that more than 3000 children languish in Florida foster care homes awaiting adoption.

Judge Birch's Comments

“We exercise great caution when asked to take sides in an ongoing public policy debate, such as the current one over the compatibility of homosexual conduct with the duties of adoptive parenthood,” Judge Birch wrote. “The state of Florida has made the determination that it is not in the best interests of its displaced children to be adopted by individuals who 'engage in current, voluntary homosexual activity' and we have found nothing in the Constitution that forbids this policy judgment.” Any argument that the Florida Legislature “was misguided in its decision is one of legislative policy, not constitutional policy,” Birch said.

Eleven states and the District of Columbia have either passed laws or had appellate court rulings permitting same-sex couples to adopt children. Florida is the only state with a law specifically forbidding adoptions by any gay, lesbian or bisexual person.

[Editor's Note: For up-to-date information on the fast-changing issue of same-sex marriage and adoption, please visit http://www.ljnonline.com/alm?map and click on the interactive map.]

On Jan. 28, the 11th U.S. Circuit Court of Appeals upheld Florida's right to prohibit gay men and lesbians from adopting children. Lofton v. Secretary of the Department of Children and Family Services, 01-17623. In a ruling written by Judge Stanley Birch, the court turned down a challenge to the 1977 law filed by four gay men seeking to adopt the children they are raising.

The law was enacted at the height of Anita Bryant's anti-homosexual campaign decades ago, and has withstood several challenges in state court. The decision comes as states react to court rulings favoring gay marriage and a Supreme Court decision in June striking down laws criminalizing gay sex.

Florida argued the state has a right to legislate its “moral disapproval of homosexuality” and its belief that children need a married parent for healthy development. In court filings, the state had said it prefers to place children in homes with both mothers and fathers, stabilized by long-term marriage. “In such homes, children have the best chance to develop optimally, due to the vital role dual-gender parenting plays in shaping sexual and gender identity and in providing heterosexual role modeling,” the state said.

The Defendants' Argument

The American Civil Liberties Union, which represents the gay couples, argued that Florida has allowed couples with drug and alcohol problems or histories of domestic violence to adopt children. Florida judges also allow some gay couples to become a child's permanent legal guardians, the group noted. “Given the state's frank acknowledgment that lesbians and gay men pose no risk of harm to children, and its willingness to place children with lesbians and gay men permanently, it is impossible to credit the idea that the ban was adopted to promote child welfare,” the ACLU said. “The only purpose the ban could possibly serve is the forbidden one: expressing the state's disapproval of lesbians and gay men.” The ACLU also notes that more than 3000 children languish in Florida foster care homes awaiting adoption.

Judge Birch's Comments

“We exercise great caution when asked to take sides in an ongoing public policy debate, such as the current one over the compatibility of homosexual conduct with the duties of adoptive parenthood,” Judge Birch wrote. “The state of Florida has made the determination that it is not in the best interests of its displaced children to be adopted by individuals who 'engage in current, voluntary homosexual activity' and we have found nothing in the Constitution that forbids this policy judgment.” Any argument that the Florida Legislature “was misguided in its decision is one of legislative policy, not constitutional policy,” Birch said.

Eleven states and the District of Columbia have either passed laws or had appellate court rulings permitting same-sex couples to adopt children. Florida is the only state with a law specifically forbidding adoptions by any gay, lesbian or bisexual person.