Florida's unique law survives a federal appellate challenge. It's the state's business, a panel rules.
By wire services
Published January 29, 2004
Four gay men lost a federal challenge Wednesday to the nation's only state law banning all homosexuals from adopting children.
The 11th U.S. Circuit Court of Appeals ruled against the Florida men, who are foster parents seeking to adopt children in their care in spite of the law passed in 1977, during the heyday of Anita Bryant's campaign against antidiscrimination laws for gays.
"Obviously, we're crushed," said Paul Cates with the American Civil Liberties Union's Lesbian and Gay Rights Project.
Gov. Jeb Bush said he was pleased by the ruling.
Florida is the only state with a complete ban on adoption by gays or bisexuals, whether couples or single. The law has withstood several challenges in state courts.
In court filings, the state said it prefers to place children in homes with both mothers and fathers and 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 three-judge panel in Atlanta said the issue was properly before the Legislature rather than the appeals court.
"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," Judge Stanley Birch wrote in a unanimous decision.
"The legislature is the proper forum for this debate, and we do not sit as a superlegislature."
The ACLU 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.
The ACLU contended that a U.S. Supreme Court decision in June that struck down Texas' antisodomy law should have barred discrimination on the basis of sexual orientation.
"We think the court is wrong in thinking that the Constitution lets the government assume that sexual orientation has anything to do with good parenting," Cates said Wednesday.
Bush said the decision "validates" Florida's conclusion "that it is in the best interest of adoptive children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored both by a father and a mother."
"Our adoption policies take that important role into account," Bush said in a statement released by his office. A leader of the conservative civil liberties legal group Liberty Counsel also hailed the ruling.
"In this age of judicial activism, it is refreshing to see a court assume its proper role and allow the people to set family policy," said Mathew Staver, president of the group. "Common sense and human history underscore the fact that children need a mother and a father."
U.S. District Judge James Lawrence King in Miami upheld the 1977 law in an August 2001 ruling that was affirmed Wednesday by the 11th Circuit panel.
Cates said the ACLU will decide in about a week whether to ask the full appeals court to consider the issue.
Edward Schiappa, a University of Minnesota law professor who follows gay rights issues, thinks the case is destined for U.S. Supreme Court review. The state will have a hard time defending the law there because of its inconsistent policy allowing gay foster parents while banning gay adoptive parents, he said.
"This has become an extraordinarily hot political button," Schiappa said.
Nationwide, 11 states and the District of Columbia have either passed laws or had appellate court rulings allowing same-sex couples to adopt children. In Georgia, a number of state court judges have approved gay parent adoptions. Mississippi and Utah ban adoptions by same-sex couples, but not by gay individuals.
