Federal appeals court rejects challenge to adoption policy dating from Anita Bryant hysteria
Taking a narrow view of the precedent established by the Supreme Court’s historic ruling in Lawrence v. Texas invalidating Texas’ sodomy law last June, an unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta ruled on Wednesday that Florida’s statutory ban on gay people adopting children is constitutional.
The lengthy opinion by Circuit Judge Stanley F. Birch, Jr., rejected every constitutional argument raised by the American Civil Liberties Union (ACLU) on behalf of the plaintiffs.
Reacting to the decision, Matt Coles, director of the ACLU’s Lesbian and Gay Rights Project, said, “We think the court is wrong in believing that government can continue to discriminate on the basis of sexual orientation after the Supreme Court’s decision in Lawrence v. Texas last summer. 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. We are distressed that the court’s decision will leave thousands of children without the homes and the parents they deserve.”
The ban was adopted by the Florida legislature in 1977 in the wake of Anita Bryant’s “Save Our Children” campaign, which was aimed at repealing a gay rights ordinance in Miami-Dade County. Bryant’s campaign, which dominated local media and emphasized the fear that gay teachers would seduce students into being gay, quickly infected the legislature, which rushed the measure through without any serious consideration of the merits.
At the time, no other state had legislated to disqualify people from adopting children if they were “a homosexual.” New Hampshire adopted such a ban during the 1980s, in a similar panic engendered by a Boston Globe article about the placement of two boys with a gay male couple. The New Hampshire ban was adopted after the state’s supreme court issued an advisory opinion that it was constitutional, citing literature that intimated that a child’s sexual orientation might be influenced by a parents’ orientation, and asserting that the state had a legitimate interest in preventing kids from growing up to be gay. The federal appeals court this week cited that language from the New Hampshire opinion. The New Hampshire legislature recently repealed its ban and no other state has such a statutory prohibition, although a handful of states have laws or regulations against adoption by same-sex couples.
Several attempts have been made to get the Florida ban repealed, and several lawsuits have been brought challenging it. The most recent, which led to this week’s decision, was filed on behalf of two gay men who are foster parents and want to adopt their foster children, as well as a gay couple who sought certification as adoptive parents after having successful experiences as short-term foster parents. Despite the ban, Florida officials have been placing kids with gay foster parents and adult guardians for many years, and there is a severe shortage of qualified adoptive parents in Florida, where more than 3,000 children are wards of the state without permanent placements.
Defending the ban, Florida argued that the optimum adoptive setting is a traditional heterosexual married family, and that as a matter of policy it has a right to insist on that model because of its obligation to serve the “best interests of the children.” However, Florida allows unmarried heterosexuals to adopt, which the court found to be rational because they might eventually marry.
The ACLU argued that Florida was violating the plaintiffs’ rights to family privacy, intimate association, and family integrity under the 14th Amendment’s due process clause, the fundamental right to privacy identified in the Lawrence ruling, and the right to equal protection of the laws.
The court rejected all of those arguments.
The ACLU argued that the foster parents formed parental bonds with their foster children, and the state’s refusal to allow them to adopt interfered with the permanency of those relationships to the children’s detriment. Rejecting this argument, the court noted that no court has previously found that foster parents have parental rights entitling them to adopt the children placed with them. Foster care is normally a temporary situation, and states have traditionally reserved the right to terminate foster relationships.
The ACLU’s second argument, seemingly enhanced by the Lawrence decision, was that the ban violated the constitutionally protected liberty of gay people. Unfortunately, Justice Anthony Kennedy’s somewhat allusive wording in the majority opinion played into the 11th Circuit’s traditional hostility to gay rights claims. Judge Birch, citing Justice Antonin Scalia’s dissenting opinion, asserted that the Supreme Court had not found some “fundamental right” in Lawrence, but merely that it was irrational for Texas to impose a criminal penalty on consenting same-sex couples for engaging in the same conduct legal for opposite-sex couples. The appeals court also found that the Supreme Court’s 1996 ruling in Romer v. Evans, striking down Colorado’s anti-gay Amendment 2 on Equal Protection grounds was also a “rationality” case.
The significance of these narrow readings is that it allows the court to give maximum deference to the legislature to come up with a “rational” reason for its policy. Using the rationality standard, a challenged law will be upheld if the legislature could rationally believe that it advances a legitimate public interest. Conceding that the state has a compelling interest in the welfare of children who are its wards, the court will give maximum deference to the state’s judgment about those interests.
The court treated as basically irrelevant the argument that with 3,000 children awaiting adoption, it made no sense for Florida to categorically exclude all gay people from adopting, when there was no evidence that being raised by a gay parent was harmful for a child. Pointing to a variety of sources, including a notorious article co-authored by discredited homophobe Dr. Paul Cameron, Birch asserted, in effect, that the Florida legislature could rationally believe that it was in the best interest of orphans and abandoned children not to be adopted at all rather than to be adopted by gay people.
This should not be all that surprising, when one considers that not too long ago, a Florida court ruled that a child was better placed with her father, who had been convicted of murder, than with her mother, who was a lesbian.
Greg Nevins, an attorney for Lambda Legal and Education Fund, which submitted an amicus brief in the case, charged that the court “abdicated its responsibility to strike down laws that deny equal protection,” and that the decision “further victimizes the over 3,000 Florida children waiting to be adopted into loving, nurturing homes.”
This need not be the end of the case. The plaintiffs can petition the 11th Circuit for rehearing before a larger panel of judges and can seek review from the Supreme Court. The ACLU announced that it was conferring with its clients and would announce shortly how it will proceed with the case.