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.



Anita Bryant—a singer, a former runner-up to Miss America in the 1950s, and a born-again Baptist. And a vitriolic homophobe.


In May 1985, Don Babets and David Jean, still reeling from the events of a week earlier when the state abruptly removed two foster children from their home, granted the Boston Globe an interview in which they criticized DSS for its actions. To the men, it made no sense for the agency to issue them foster care licenses after spending months evaluating their application only to then remove the children “hours after the media learned of the placement.” This suggested to the couple that the decision to take the boys away was driven by politics rather than by what was best for the children.

Ten days later, the Massachusetts House of Representatives approved a bill, by a vote of 112 to 28, that would ban the placement of foster children with lesbians and gay men. The provision stated that “a homosexual preference shall be considered a threat to the psychological and physical well-being of a child.” The bill was sent to the state senate, which never approved it because DSS soon announced that it had made changes to its foster care placement policy.  From now on, the state would seek to place children only in “traditional family settings.” As part of this new policy, child welfare officials would ask everyone applying to serve as foster parents about their sexual orientation. Those who responded that they were lesbian or gay would be placed at the bottom of a priority list that had married heterosexual couples at the top.  In addition, the agency announced that existing placements with lesbian and gay foster parents would be subject to a special, bi-annual review to determine whether the children should be removed from the homes.

The new policy, which was drafted and instituted in a little over two weeks under the direct orders of Governor Dukakis, led to an outcry from the LGBT community, both in Massachusetts and elsewhere. Activists in Boston formed a Gay and Lesbian Defense Committee to agitate against the changed policy, while the Civil Liberties Union of Massachusetts and the Gay and Lesbian Advocates and Defenders threatened a lawsuit. Several large demonstrations were held in front of the state capitol. Governor Dukakis found himself the subject of frequent protests — some outside of his office and others outside of his home — starting in 1985 and going all the way through 1988 when he successfully ran for the Democratic Party’s nomination for president.

But the administration’s new policy had powerful institutional supporters, including the Catholic Church and the Boston Globe. Archbishop Bernard Law — who would later be removed by the Vatican from his Boston post for failing to protect children from sexually abusive priests — urged that children be placed only with married heterosexual couples. And, in an editorial published two days after DSS announced its new policy, the Globe warned that “the state’s foster-care program is not a place for social experimentation with nontraditional family settings. It should never be used, knowingly or unknowingly, as the means by which homosexuals who do not have children of their own… are enabled to acquire the trappings of traditional families.” Even Ellen Goodman, the stalwart liberal Globe columnist who was otherwise critical of the decision to remove the children from Don and David’s home, complained in her nationally syndicated column that “I have never understood the need of gay couples to define their relationships as ‘family.’” She added, for good measure, that she was “uncomfortable with those gay women who deliberately go out to ‘get’ children on their own through artificial insemination.”

In early 1986, Don and David filed a lawsuit against the state arguing that the new foster care policy violated their rights to equal protection and privacy. In September of that year, a trial court judge found the policy unconstitutional. The litigation dragged on for three more years, in part because the state refused to turn over documents describing internal discussions during the days following the publication of the initial Globe story. In 1988, the state supreme court ordered government officials to make the documents available to the plaintiffs. Those materials showed that Governor Dukakis and his staff, in the days following the breaking of the story, had been driven by political considerations in drafting the new foster care policy. Eighteen months after the high court issued its ruling, the state reached a settlement with Don and David, agreeing to change its foster care policy so that parenting experience — rather than sexual orientation or marital status — would be the most important factor in making foster care placement decisions.

In late 1990, the gay couple, elated by their victory but exhausted by their five-year battle with the Commonwealth of Massachusetts, moved to a rural part of the state seeking peace and quiet. Less than two years later, that peace and quiet came to a joyful end when they adopted four siblings simultaneously, all under the age of 8.

The foster care controversy in Massachusetts led neighboring New Hampshire to enact a law in 1987 prohibiting lesbians and gay men from serving as foster care or adoptive parents. On the day the measure became law, state representative Mildred Ingram, who had been the main supporter of the bill, stated that “I’m not against homosexuals. They are adult people. They made their own choice and the only one they have to answer to is their maker. They can go on their merry way to hell if they want to. I just want them to keep their filthy paws off the children.”

New Hampshire was not the first state to enact a law prohibiting gay people from adopting.  That distinction went to Florida 10 years earlier. The Florida ban had its genesis in January 1977, when Dade County became the first southern municipality to enact a gay rights law. The ordinance, which prohibited employers, landlords, and places of public accommodation from discriminating on the basis of sexual orientation, was hailed by the local gay community. 

Many social conservatives, however, soon began pushing for its repeal, an effort that was led by Anita Bryant — a singer, a former runner-up to Miss America in the 1950s, and a born-again Baptist. This apparently wholesome, all-American figure ended up conducting an antigay crusade driven by a vitriolic rhetoric that had never been heard before and has rarely been matched since.

Bryant and her allies centered their campaign in favor of the ordinance’s repeal on the need to protect children from gay people. Indeed, opponents of the law formed a group called “Save Our Children,” which published ads in newspapers contending that “the recruitment of our children is absolutely necessary for the survival and growth of homosexuality — for since homosexuals cannot reproduce, they must recruit, must freshen their ranks.” During the repeal campaign, Bryant referred to gay people as “human garbage,” while criticizing the ordinance as an attempt to “legitimize homosexuals and their recruitment of our children.”

Gay rights opponents collected more than 60,000 signatures — six times the number required by law — in order to place a repeal referendum before voters in June 1977. The conservative activists also succeeded in assembling a broad coalition in support of the repeal, one that included different religious denominations. The Roman Catholic Archbishop of Miami, for example, distributed a pastoral letter urging parishioners to vote against the gay rights law, while some local rabbis signed a statement in support of the repeal. Bryant’s success in mobilizing opposition to the ordinance also caught the attention of conservative movement leaders across the country eager for national exposure — including a minister from Virginia by the name of Jerry Falwell — who descended into South Florida to assist in the repeal effort.

In the end, the gay rights forces were overwhelmed by their opponents. On election day, county residents voted to void the ordinance by a two-to-one margin.

The political campaign in south Florida presenting homosexuality as a threat to children led the Florida legislature, that same year, to pass the nation’s first statute prohibiting gay people from adopting. At the time the law was enacted, there had been only a handful of reported instances of an openly lesbian or gay person adopting a child in the entire country, and none of those had taken place in Florida. The statute, therefore, was not so much aimed at “protecting” children from gay people as it was at sending a message of disapproval of homosexuality. As one of the measure’s strongest supporters in the Florida legislature explained at the time, the law was meant to say to gay people that “we’re really tired of you. We wish you would go back into the closet.” The same legislator added that “the problem in Florida is that homosexuals are surfacing to such an extent that they’re beginning to aggravate the ordinary folks, who have rights of their own.”

Tags: Politics