When the State Discriminates

Author Carlos A. Ball chronicles the stories of LGBT parents who have fundamentally changed how American law defines and regulates parenthood in this excerpt from The Right to Be Parents: LGBT Families and the Transformation of Parenthood.



There had been earlier unsuccessful challenges to the Florida law, but they were grounded in state constitutional claims. In contrast, Steven’s lawsuit contended that the adoption ban violated his federal constitutional rights to due process and equal protection. The former claim was based on the notion that the state had encouraged him to establish a parent-child relationship with Bert — at the time the lawsuit was filed, Bert had been living with Steven and Roger for almost nine years—and that the relationship was now subject to constitutional protection. The latter claim was grounded in the idea that it was irrational for the state to render all gay people — regardless of background, experience, and personality — ineligible to adopt.

In defending the law, the state argued that children were better off when raised by a married mother and father. This arrangement was particularly beneficial to children, Florida contended, because it allowed for proper “gender role-modeling.” Only heterosexual couples, the state explained, permitted children to learn from both a male and a female parent.

Steven’s ACLU lawyers responded to the state’s claims by noting that even if the court were to assume that it was optimal for children to be raised by a mother and a father who were married, denying gay people the opportunity to adopt did not in any way help the state achieve that goal. This was because there were many more children in the Florida’s foster care system waiting to be adopted than there were married heterosexual couples willing to adopt them. In fact, at the time the lawsuit was filed in 1999, there were over 3,400 children in Florida without permanent homes. And their wait for such a home was long — almost forty percent of the children in foster care waited more than four years before being placed for adoption, while eighty percent waited more than two years. All of this meant that denying Steven the opportunity to adopt Bert because he was gay did not mean that the 9-year-old would be adopted any time soon by a married heterosexual couple. (A study conducted several years later concluded that Florida’s gay adoption ban prevented an estimated 165 children in the state’s foster care system from being adopted. Ironically, this was the same number of Florida foster care children who “aged out of the system” in 2006, that is, who became too old to be adopted.)

The state’s claim that it took seriously the purported benefits for children of being raised by a married mother and father was also undermined by the fact that 25% of adoptions statewide (and 40% of adoptions in Dade County) were done by single people. (Nationally, about one-third of foster care children are adopted by single individuals.) And single people, of course, were unable to provide the dual-gender parental role modeling that the state contended was so essential to the well-being of children.

The inconsistencies in the state’s positions were further evident from the fact that it permitted gay people to serve as foster parents and as legal guardians. (One of the other plaintiffs who joined Steven in his lawsuit was a gay man who several years earlier, with the state’s approval, had been named a young boy’s legal guardian at the request of the child’s biological father.) Clearly, Florida did not really believe that placing children, sometimes for years, in the care of gay people was harmful to them. Indeed, the state seemed to reserve that contention only for when it found itself in court defending the constitutionality of its gay adoption ban.   

Florida’s adoption law targeted gay people while not denying any other group, not even convicted felons or perpetrators of domestic violence, the opportunity to file adoption petitions. The fact that the state evaluated the adoption petitions of all Floridians except for gay ones on a case-by-case-basis showed that the real purpose of the ban was to send a message of disapproval of homosexuality rather to advance the best interests of children. This seemed particularly true in Steven’s case since state officials acknowledged that he had done an admirable job raising the foster children whom they had placed in his care.        

None of Steven’s legal arguments, however, were enough to persuade the federal district court judge who heard the case. In August 2001, that judge issued an opinion upholding the statute’s constitutionality. Despite the fact that the state had placed several children with Steven for years on end, the judge concluded that foster care placements were not permanent enough to merit constitutional protection. Since the state had almost unlimited discretion in deciding when to terminate foster care placements, the type of due process constitutional protection usually afforded to parent-child relationships did not apply to the relationship between Steven and Bert.

The court also held that the adoption ban withstood the equal protection challenge, concluding that the state had a rational reason for instituting it. After finding that lesbians and gay men are not a “suspect class” — which would have required Florida to defend its policy by showing the existence of an important state interest (as it must, for example, with policies that make distinctions on the basis of gender) — the court went on to agree with the government that it was reasonable to believe that children benefit from being raised by a married mother and father.

Tags: Politics