Gay Adoption Debate Pits Moral Arguments Against Need for Homes

By Maya Bell
Miami Bureau
March 5 2003

[Click Above for Enlarged Photo]

Dan Skahen and Wayne Smith get a hug.

Lawyers for four gay men seeking to adopt children they are raising urged a federal appeals court Tuesday to strike down Florida's law prohibiting homosexuals from adopting, the only law of its kind in the nation.

Lawyers for the American Civil Liberties Union and the Children First project told a three-judge panel from the 11th U.S. Circuit Court of Appeals the ban is unconstitutional because it is rooted in animosity toward homosexuals and harms children in need of families.

They said gay men and lesbians should have the same opportunity as all other Floridians to be evaluated as potential adoptive parents -- especially with 3,400 foster children awaiting adoption.

"Anybody who looks at the facts knows the law wasn't passed for child welfare," Matthew Coles, of the ACLU's Lesbian and Gay Rights Project, said after the hearing in Miami federal court. "It was done to make a statement: We don't like gay people in Florida."

Representing the state, Casey Walker of Vero Beach countered that legislators had a right to legislate their moral disapproval of homosexuality and their belief that children need a married father and mother for proper role-modeling and gender identification.

"Animosity is not the same as public morality," Walker said.

Members of the appellate panel had pointed questions for both sides, with Judge Stanley Birch asking the state to justify why it lets single Floridians adopt -- 25 percent of adoptions statewide are to single people -- if the goal of the ban is to place children with married couples. Noting that one in three marriages fail, he said the reasoning behind the ban "is kind of hard for me to grasp."

Judge Proctor Hug Jr. questioned whether the stated rationale behind the law can hold in light of the number of children awaiting adoption.

"There's a shortage," Hug said. "Why isn't that something we would consider?"

At issue is a 15-word statute as succinct as it is controversial: "No person eligible to adopt under this statute may adopt if that person is homosexual," the law reads.

The Florida Legislature enacted the statute in 1977, at the height of the anti-gay crusade that singer Anita Bryant ignited after Dade County granted gays and lesbians protection from discrimination. Last year U.S. District Judge James Lawrence King upheld the law, deferring to the Legislature, and it is King's ruling that is on appeal to the Atlanta-based 11th Circuit.

Today the statute remains the only blanket ban on gay adoptions in the nation. Utah and Mississippi have some restrictions, but they are not as broad.

The appellate court's decision, not expected for months, could provide direction to other states considering similar legislation.

Challenging the Florida law's constitutionality are four gay man who are raising five of Florida's abused, neglected or abandoned children. Although the state forbids homosexuals from adopting, it often relies on them to take in some of Florida's toughest foster children.

For example, the lead plaintiff, Steven Lofton, a pediatric nurse, and his partner of 20 years, Roger Croteau, were recruited in 1988 to care for black babies born with the HIV virus. Three of the children still live with them and have never known any other home.

Maya Bell can be reached at mbell@orlandosentinel.com or 305-810-5003.

Through various court orders, the men have legal arrangements that essentially make them permanent caregivers for abused, abandoned or neglected children they have raised from infancy. Even the state acknowledges these gay men are the de facto parents of their charges and probably always will be.

"Which just shows how insane the law is," said Tim Arcaro, director of the Child & Family Clinic at Nova Southeastern University's law school. "How can you say you're good enough to raise this child for the rest of his life, but you're so defective as a person you're not good enough to adopt?"

The latest such order was issued in December, when a Monroe County judge awarded Key West lawyer Wayne LaRue Smith, and his longtime partner, real estate broker Daniel Skahen, irrevocable custody of a 5-year-old boy known in court records as A.A.

"For the past two years, the Foster Parents have been model parents for A.A," Judge Sandra Taylor wrote in the Dec. 6 custody order. "They will be solely responsible for making all decisions concerning the health and welfare of the Child through the age of 18."

Smith, 47, and Skahen, 36, who have fostered 15 children over the years, are among four gay plaintiffs who are challenging the state ban. The broadest such law in the nation, it was enacted 26 years ago at the height of the anti-gay crusade singer Anita Bryant launched after Miami-Dade County extended protection against discrimination to gays and lesbians.

The plaintiffs lost the first round in Miami last summer when U.S. District Judge James Lawrence King upheld the law, ruling that legislators had a right to decide that children are best served by being raised in a home with a married mom and dad.

Today, Smith and Skahen will join Doug Houghton of Miami and Steven Lofton, who now lives in Oregon, in a Miami federal courtroom for round two. There, in a case watched closely by competing gay-rights and conservative Christian movements nationwide, a panel from the Atlanta-based 11th Circuit will review King's decision.

The state's lawyer, Casey Walker of Vero Beach, contends the state has a right to legislate its "moral disapproval of homosexuality" and its belief that children need a married mom and dad for healthy development. The place to change the law is the Legislature, not the courts, he said.

Representing the gay men and two children, attorneys with the American Civil Liberties Union and the Children First project counter the only immorality is the state's practice of shuffling neglected children through foster care while using a law rooted in prejudice to disqualify gay people who are willing to adopt them. More than 3,400 children in state custody are awaiting adoptive parents.

They also note that, despite the state's stated goal of placing children with married couples, 25 percent of those adopted in Florida end up with single people anyway.

Both sides agree, however, that no matter how the appellate court rules, the gay men challenging the ban are and likely will remain the de facto parents of the children they yearn to adopt. Taylor, the Monroe judge, all but assured that in A.A's case when she issued her December order making Smith and Skahen the boy's permanent legal guardians.

"The order goes to enormous lengths to create a situation that is as like adoption as you can get without the act being adoption," said Matt Coles, of the ACLU's lesbian and gay rights project. "And I suspect this is not rare. One way or the other social workers and people who are really working for child welfare make arrangements like this all the time."

But Owen Roach, a DCF spokesman, said department officials do not recall a similar arrangement. He said it was reached only at the request of A.A.'s parents, and because no one else was available to adopt the boy.

Houghton, a critical care nurse who lives in Coconut Grove, has a similar guardianship arrangement for Oscar, the 11-year-old boy he has raised since age 3, but the department is not a party to it. About eight years ago, Oscar's father came to the pediatric clinic where Houghton had treated Oscar and asked Houghton to care for his son for a few days. At the time, Oscar's father was homeless. Now deceased, the boy's mother used to lock him in a closet when she went out to hunt drugs.

Houghton agreed to help, thinking the boy would stay for a few days. They've been together ever since.

"The legal thing is just a sidebar," Houghton said in a 2001 interview. "In essence, I've been his father for a number of years."

Lofton, the lead plaintiff in the lawsuit, has a more tenuous arrangement. A pediatric nurse who used to work in the AIDS unit at Miami's Jackson Memorial Hospital, he was recruited as a foster parent in 1988 to care for children few others wanted: black babies infected with AIDS.

When Lofton moved to Oregon to be close to his extended family, the state allowed him to take three children who had been placed in his care.

But in 2000, the Florida Legislature forbade long-term foster care for children younger than 14, prompting DCF to initiate adoption proceedings for Lofton's youngest foster child, a boy known in court records as John Doe.

Now 11, John has lived with Lofton all his life.

Citing pending litigation, DCF would not comment, but Arcaro, who represents John in juvenile court, said the judge in John's case will not allow John to be yanked from the only family he has ever known, and DCF "is no longer pressing the issue."

While the status quo is better than the alternative, Arcaro and other lawyers opposing the ban say it's still not good enough.

Long-term foster care or even permanent guardianship is no substitute for adoption, no substitute for the legal document that assures children like A.A., Oscar and John, "this is your home. This is your family. Nobody can take you from it."

For Smith, anything else is inhumane.

"We've had 15 foster children, and almost all of them have said without prompting, without invitation, `Will you be my daddy?' Not one has ever said, `Will you be my guardian?' It's important for kids to know they have that stature in the world, that they belong, ... especially kids whose own natural parents failed them."

Maya Bell can be reached at mbell@orlandosentinel.com or 305-810-5003