A federal appeals court had tough questions for both sides Tuesday on the constitutionality, morality, and rationality of Florida's ban on gay adoptions, the most stringent in the nation. The American Civil Liberties Union and the advocacy group Children First say the 1977 law, pushed by antigay activist Anita Bryant, should be thrown out because it discriminates against gays and limits opportunities for 3,400 foster children awaiting adoption in the state. Florida does allow gay men and lesbians to be foster parents and permanent legal guardians. But while Utah and Mississippi bar only gay couples from adopting, Florida bars all gays and lesbians from adopting.
The lawsuit was filed by two gay couples who have taken care of foster children for years. They appealed to the 11th circuit U.S. court of appeals after U.S. district judge James Lawrence King dismissed the case in 2001, saying the law is in the best interests of children. Children First attorney Christina Zawisza argued that the state doesn't believe its own pro-family claims, because 40% of its child placements are in single-parent homes.
Judge Ed Carnes said he was concerned that overturning the ban might affect the state's right to exclude any group of people from adoptions, such as convicted felons. The judge also noted state court precedent upholding a ban on adoption by sexually active unmarried couples. ACLU attorney Matt Coles said the state applies that restriction only to gay people.
Attorney Casey Walker, arguing for the state before the three-judge panel, said Florida's priority is adoption by married couples to encourage a stable home environment and promote heterosexual role models. "It has to be contrasted with not having any kind of stable relationship at all," Judge Stanley Birch responded. "The rationality of it, other than some kind of moral affirmation, is kind of hard for me to grasp."
Judge Proctor Hug also referred to the hundreds of children eligible for adoption in a state where there aren't enough foster parents and adoptive homes. "There's a shortage," he said. "Why isn't that something we would consider when evaluating the rationality of the law?"
Walker responded that the lawsuit challenging the law is not a class action. Hug shot back, "But it's also on behalf of the children."
Five gay foster fathers attended the hearing, one of them with his 11-year-old foster son of eight years. All seemed buoyed by what they saw and heard. Wayne Smith, a Key West lawyer who has served as a foster parent for 15 children in four years, accused the state of "not only being hypocritical. It's being mean. It's about children having parents."
A decision isn't expected until this summer.