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U.S. Judges Question the 'Rational Basis' of Gay Adoption Ban

jweaver@herald.com
March 5, 2003
 

A trio of federal appellate judges on Tuesday questioned whether there was a ''rational basis'' for a Florida law banning gay men and lesbians from adopting children in a case that has drawn national attention.

The judges' probing questions focused on an appeal mounted by four gay men who lost their lawsuit in the U.S. District Court in Miami in 2001. The four say that the 26-year-old law -- the only blanket ban against gay adoption in the country -- violates their constitutional rights.

The state Department of Children & Families, which enforces the law, has asserted that the optimal place for adopted children is in a traditional household with a married mother and father.

The restriction was crafted by the Legislature in 1977, at a time when Miami Beach resident Anita Bryant, a former Miss America, was leading a nationwide attack against gay rights.

The gay men's lawyer, Matt Coles of the American Civil Liberties Union, told the appellate panel in Miami that there was no reason for their exclusion because state officials already allow gay men and lesbians to be foster parents and legal guardians.

The plaintiffs -- Steven Lofton of Portland, Ore., and Douglas Houghton of Miami, and Wayne Smith and Daniel Skahen of Key West -- are either foster parents or guardians for four children they want to adopt.

Moreover, Coles said, there are 3,400 children in state custody awaiting adoption. He also noted that straight, single people -- even those in unmarried relationships -- are allowed to adopt children in Florida.

''It just doesn't make any sense,'' said Coles, director of the ACLU's Lesbian & Gay Rights Project.

STATE'S POLICY

Appellate Judge Stanley F. Birch Jr. zeroed in on the state's policy of excluding gay men and lesbians from adopting but including singles who are straight.

''What's the rational basis here?'' asked Birch, a judge on the 11th U.S. Circuit Court of Appeals in Atlanta.

Casey Walker, a Vero Beach attorney representing the DCF, said child-welfare officials believe married couples can provide a more stable home and serve as better gender role models.

''The state has an interest in providing adoptive homes where the mother and father are married,'' he said.

Walker added that single people are also desirable as adoptive parents as long as they are heterosexual. He said the agency contends children growing up in a gay or lesbian home could be influenced by that lifestyle.

''Anything wrong with that?'' Birch asked.

''The science says there may be,'' Walker said without elaboration.

The judge also questioned why the state held so steadfastly to the principle that a child's best interest can only be provided in a married household.

''What may have been rational in 1977 may no longer be,'' Birch said.

Senior Judge Proctor Hug focused on the pool of 3,400 Florida children eligible for adoption in a state lacking enough foster parents and adoptive homes.

''There's a shortage. Why isn't that something we would consider when evaluating the rationality of the law?'' he asked.

Walker said the lawsuit challenging the law was not a class action.

''But it's also on behalf of the children,'' Hug said, referring to two children named as plaintiffs in the suit.

SINGLE PARENTS

Children First attorney Christina Zawisza argued that the state doesn't believe its own pro-family claims because at least 25 percent of its child placements are in single-parent homes.

Judge Ed Carnes expressed concern that if the ban on gay adoptions were overturned, it would affect the state's right to exclude other people from adoption, such as ex-felons.

He also cited a state appeals court precedent upholding a regulatory ban on adoption by sexually active unmarried couples. The ban makes no reference to sexual orientation.

Coles said the DCF applies that restriction only to gays -- not to a man or woman in an unmarried heterosexual relationship who want to adopt.

Coles said he expected the panel to issue a ruling later this year.

He said the court would likely wait until after the U.S. Supreme Court rules in June on a challenge to a Texas sodomy law that criminalizes gay intercourse.

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