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Anita Bryant Lives:
Florida's Continuing Assault on Gay Adoption


Monday, Feb. 02, 2004

Remember Anita Bryant, the Miss America runner-up turned orange juice tout turned anti-gay campaigner? Though she long ago faded from public view, her legacy survives in Florida.

Bryant, who condemned homosexuality as immoral and "against God's wishes," is best known for her 1977 campaign to repeal a Miami ordinance banning anti-gay discrimination. Her organization, Save Our Children, claimed that gays -- or "known practicing homosexuals," in her lingo -- were converting children. It was thus no surprise that after Bryant succeeded in her self-described crusade against the bias ordinance, she turned her sights on Florida's adoption laws.

"Since homosexuals cannot reproduce," Bryant reasoned, "they must recruit and freshen their ranks." Fanning the flames of anti-gay hysteria, Bryant helped convince the Florida legislature to pass a law that entirely barred gays from adopting children.

Fast forward more than two and a half decades. In the intervening years, Miami finally passed an anti-gay bias ordinance, the U.S. Supreme Court struck down Texas' ban on gay sodomy, and Anita Bryant slipped into obscurity.

Nonetheless, last week's ruling by the U.S. Court of Appeals for the Eleventh Circuit, which upheld Florida's anti-gay adoption law, was a throwback to a less enlightened era. While its language was more guarded then Bryant's ever was, the court still, at bottom, relied on the same discriminatory rationale: that gay adoptive parents might create gay adoptive kids.

The Meaning of Lawrence v. Texas

The case began in 1999, when four gay men who were serving as foster parents or legal guardians filed suit in federal court claiming that Florida's anti-gay adoption law was unconstitutional. The lead plaintiff, Steven Lofton, is a registered pediatric nurse who has raised from infancy three children who were born HIV-positive. As the Eleventh Circuit was to acknowledge in its opinion, "by all accounts, Lofton's efforts in caring for these children have been exemplary."

The district court threw out the suit in 2001, and the plaintiffs appealed. Their claim got what might have seemed like a decisive boost last summer, when the Supreme Court ruled in the case of Lawrence v. Texas that Texas' gay sodomy statute was unconstitutional.

One of the factors the Court emphasized, in striking down the Texas law, was the unjust stigma it engendered. By making gay sodomy illegal (or in the Court's euphemistic language, by "making it a crime for two persons of the same sex to engage in certain intimate sexual conduct"), the law was an "invitation to subject homosexual persons to discrimination both in the public and in the private spheres."

Much of the Court's reasoning presumes that gays and lesbians have the right to be free from discrimination. Yet its ruling is grounded in privacy concerns rather than anti-discrimination protections. Sounding almost apologetic, the Court explained that a decision based on equal protection grounds would have left heterosexual sodomy unprotected. "Were we to hold the statute invalid under the Equal Protection Clause," the majority opinion noted, "some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants."

Sodomizing heterosexuals no doubt rejoiced, but the Court's failure to decide the case on equal protection grounds left important questions unsettled. The issue of gay marriage was, of course, foremost among them, at least in the public debate. Yet in other areas, as well, the constitutional footing of rules discriminating against gays remained less than wholly clear.

The Eleventh Circuit's Thinly Veiled Homophobia

The Eleventh Circuit's ruling last week is one of the first post-Lawrence cases to address such questions. In upholding Florida's discriminatory adoption law against an equal protection challenge, the court disappointed anyone who expected Lawrence to bring about a sea-change in the courts' treatment of anti-gay restrictions.

Like Justice Sandra Day O'Connor, who wrote a concurring opinion in Lawrence on equal protection grounds, the Eleventh Circuit examined whether the anti-gay rule imposed by the law had any rational basis. But whereas O'Connor, in her opinion, concluded that Texas had no legitimate reason for its discriminatory restrictions, the Eleventh Circuit found that the Florida legislature might rationally conclude that gays, as a group, are less fit than heterosexuals to raise children.

Nowhere is the court's opinion is Anita Bryant's undisguised homophobia on display. Indeed, the opinion's language is circumspect and its message is carefully modulated. But what it finally asserts, in a cautious, roundabout way, is that gay parents might adversely influence the development of their children's sexuality. They might, in other words, make their children gay, too.

The court cites no scientific data to support this supposition. Indeed, it never even states categorically that parental sexual orientation has a bearing on that of children. But in concluding that "the influence of environmental factors in forming patterns of sexual behavior" is an empirical issue, not amenable to judicial resolution, the court allows that the mere hypothetical possibility of such parental influence is enough to bar gays from eligibility to adopt.

Anita's Last Laugh

3,400 Florida children now languish in foster care, waiting for a permanent home. But for all of the Eleventh Circuit's high-minded talk about nurturing families and the "the best interests of the child," the real basis for its damaging ruling was ignorance, bias and homophobia.

Anita Bryant must be proud.

Joanne Mariner is a FindLaw columnist and human rights attorney. She invites comparisons between Anita Bryant (who once asserted that "If gays are granted rights, next we'll have to give rights to prostitutes and to people who sleep with St. Bernards") and Justice Antonin Scalia. (Scalia argued, in Lawrence, that "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are … sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision.")

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