The Family that Dare Not Speak Its Name:
Florida?s Ban on Gay Adoption Reaches the U.S. Court of Appeals For the Eleventh Circuit

By SHERRY F. COLB

Wednesday, Mar. 12, 2003

Last week, the U.S. Court of Appeals for the Eleventh Circuit heard argument in Lofton v. Butterworth, a case about the constitutionality of Florida's ban on gay men and lesbians adopting children. The plaintiffs in the case argued that the ban violates the Equal Protection and Due Process Clauses of the U.S. Constitution.

Mississippi and Utah prohibit adoption by same-sex couples. But Florida has the distinction of being the only state that categorically excludes individuals from adoptive parenthood on the basis of sexual orientation.

In 2001, U.S. District Judge James Lawrence King dismissed the challenge to Florida's law. He concluded, on a motion for summary judgment, that the adoption ban was valid because it was rationally related to the State's legitimate interest in protecting the best interests of children. A brief look at some of the facts of Lofton, however, dramatically illustrates that Judge King was mistaken.

The People Who Brought the Case: Longtime Caretakers

Several of the foster parents who brought suit stand to lose custody of children for whom they have cared for years. For example, one gay couple fostered an infant who tested positive for HIV and cocaine exposure. Although the two men lovingly raised the boy for ten years and would like to become his adoptive parents, Florida denies them any right to a continuing relationship with him.

In a second case, the plaintiff began caring for a four-year-old boy at the request of the boy's biological father, a man who was unable to care for his son due to alcoholism. The boy, now eleven years old, has been in the plaintiff's care for seven years, and the biological father has decided to terminate his own parental rights. This plaintiff too would like to adopt the boy, but Florida law makes that impossible.

These are just two of the children who, independent of their wishes and those of their caretakers, can be ripped from their homes at any time to be placed permanently with strangers. In both of these cases, moreover, the judge who dismissed the suit said, "[t]he Court does not doubt that the emotional ties between [the men and the children] is [sic] quite close - as close as those between biological parents."

Defending the Ban

The State of Florida initially defended its adoption ban on ideological grounds, asserting that it was thereby expressing its disapproval for homosexual behavior. The district court, however, rejected this moral argument, finding that "[e]nacting a classification to express society's disapproval of a group burdened by the law is precisely what the Equal Protection Clause does not allow." Nonetheless, the district judge went on to uphold the Florida ban on gay and lesbian adoption.

Explaining his decision, Judge King cited Supreme Court precedents distinguishing between different types of discrimination. The Supreme Court has held that some kinds of official discrimination--such as that based on race or national origin--require a very strong justification if they are to be constitutionally upheld.

The Court has also said that state laws burdening so-called "fundamental rights"--such as marriage and the right to biological parenthood--require a compelling justification.

In lawyers' jargon, laws that discriminate on the basis of "suspect classifications" or that burden fundamental rights must satisfy "strict scrutiny."

Judge King ruled that sexual orientation is not a suspect classification like race and that adoption is not a fundamental right like marriage. Both rulings are dubious.

In Lawrence v. Texas, currently pending before the Supreme Court, one argument for invalidating the Texas ban on homosexual (but not heterosexual) sodomy is that discrimination on the basis of sexual orientation should be treated as suspect. Likewise, Supreme Court precedents involving the rights of biological parents indicate that the formation of a significant relationship with a child--rather than biology alone--has constitutional significance.

Because Judge King found no suspect classification or fundamental right implicated in the Lofton case, he demanded only a minimal justification for the Florida adoption ban. He applied what lawyers call the "rational basis" test. That test requires only that a state policy have some rational justification; it need not be a very good justification. Under this standard, Judge King found that the ban was indeed rational.

Erroneous Ruling, Even Under Rational Basis Review

One might think that, given the decision to apply only the rational basis test, the ruling was correct. After all, there are psychiatric professionals who believe that a child's best option is to live with two married, heterosexual parents. If one accepts this view, then one could understand why, when a child is available for adoption, a state official might legitimately prefer a married couple to a gay couple, all other things being equal.

For related reasons, moreover, a state official might select a married couple over a single man or woman, regardless of sexual orientation, or a young couple over an older couple, or a wealthy couple over a poor couple, all other things being equal.

Though I might personally disagree with any one of these decisions, made at the margin, along with their accompanying assumptions, I would have a difficult time arguing that there could exist no rational basis for making them.

Florida's law, however, does not simply govern decisions at the margin, when all other things are equal. It does not address sexual orientation as one factor to be considered by officials making complicated judgments about a child's best interests.

Instead, Florida takes the bold position that no matter what a child's or a family's circumstances are, if the foster parent or guardian is homosexual in orientation, then he or she can never become a child's adoptive parent.

As a result of Florida's law, the state Department of Children and Families ("DCF"), an organization ostensibly dedicated to the protection of children, must now tell a ten-year-old child, who has known no other parents besides his two foster fathers since he was two months old, that the agency is actively recruiting heterosexuals he has never met, to take him permanently away from his home.

If DCF succeeds in its quest for replacement parents, it will rip apart an existing family in the absence of any evidence of unfitness, a cruel and arbitrary act that is likely to traumatize both the child and his foster parents. To suggest that such exile from his home could be in the boy's best interests is fanciful.

Worse, the circumstances here are likely to repeat themselves regularly. For better or for worse, American state child welfare agencies deal with orphaned and abandoned children primarily through foster care placements rather than through orphanages. Gay men and lesbians in Florida can and do qualify to become foster parents. As a result, there will be many gay men and lesbians who take care of children in Florida for extended periods of time, only to lose them somewhere down the line.

Others Ineligible For Adoptive Parenthood

Though rational basis scrutiny requires only the weakest of justifications, the Florida ban on gay and lesbian adoption ought to fail even that lenient and deferential standard. In fact, one of the State's own arguments serves to expose the ban's irrationality.

Florida points out that gay men and lesbians are not the only ones categorically barred from adopting children. Sexual predators and people convicted of felony child abuse are similarly ineligible to adopt.

A sexual predator is a person who has been found to engage compulsively in rape or child molestation. By his own conduct, a child molester therefore designates himself as dangerous.

Individuals who have been convicted of child abuse have similarly been adjudicated to have acted in ways that unquestionably pose a substantial threat to the wellbeing of any children in their care.

In an important sense, sexual predators and child abuse convicts have been individually evaluated for their fitness to parent. Their evaluations consisted of the initial factual determinations that put them into one of these two categories in the first place.

By contrast to such individuals, gay men and lesbians are no more likely to abuse a child, sexually or otherwise, than heterosexuals are. That a heterosexual married couple might be preferable as parents, at the margin, according to some professionals, in no way justifies a categorical ban that results in the removal of well-cared-for children from stable and loving homes.

Hypocrisy Exposes Bigotry

The plaintiffs argue that the state of Florida is hypocritical, because it allows gay men and lesbians to act as foster parents but simultaneously refuses to permit them to become adoptive parents. This inconsistent treatment of gay men and lesbians represents more than simple hypocrisy, however.

Giving permission to people to foster children is tantamount to a concession that Florida does not truly consider them unfit custodians of children. (Sexual predators and child abuse convicts, in contrast, are necessarily unfit custodians of children - and should thus be barred from both fostering and adopting.).

From a caretaker's perspective, there is one primary difference between long-term, indefinite foster care (permitted to homosexual families) and adoptive parental care (prohibited to homosexual families). It is the comfort of parental status and the concomitant knowledge that the parent-child unit is legally insulated from unwarranted governmental disruption or termination. The status of "parent" thus offers a security for both parent and child that the status of "foster parent" cannot match.

By allowing a gay man or a lesbian the insecure status of foster parent while denying him or her the title of adoptive parent, Florida law thus disregards the best interests of children. It does so in the service of its admitted desire to send a message of intolerance toward homosexuality.

As even the district court recognized in this case, however, the statute at issue may not constitutionally be defended as a means of condemning homosexuality. Because there is no other rational justification for the ban, it should be invalidated by the Eleventh Circuit on appeal.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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