Originally published on Advocate.com January 29 2004 1:00 AM ET
Four gay men in Florida seeking to adopt children lost their high-profile federal court challenge Wednesday. The 11th U.S. circuit court of appeals ruled against the foster parents, who were seeking to adopt children already in their care. "Obviously we're crushed," said Paul Cates with the American Civil Liberties Union's Lesbian and Gay Rights Project.
Florida is the only state in the nation with a complete ban on adoption by gays, whether married or single. The law has withstood several challenges in state court. Florida argued that the state has a right to legislate its "moral disapproval of homosexuality" and its belief that children need a married parent for healthy development.
The ACLU represented Steven Lofton and his partner, Roger Croteau, who are raising five children, three of them from Florida. The children have never known any other family but cannot be adopted by the men under Florida law. A second couple, Wayne Smith and Dan Skahen, are foster parents who were hoping to adopt one child. Another man, Doug Houghton, had been the legal guardian of a boy for at least seven years. Although the child's biological father gave his approval for Houghton to be the legal parent, Houghton can't adopt under Florida law. The case gained national attention after former talk-show host Rosie O'Donnell helped to focus attention on the battle--and the fact that more than 3,400 children are waiting to be adopted in Florida.
"We have read the court's opinion, and we're deeply disappointed by it," said Matt Coles, executive director of the ACLU's Lesbian and Gay Rights Project on behalf of the men. "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 three-judge panel in Atlanta said the issue is properly before the legislature rather than the appeals court. "We exercise great caution when asked to take sides in an ongoing public policy debate," Judge Stanley Birch wrote in a unanimous decision. "Any argument that the Florida legislature was misguided in its decision is one of legislative policy, not constitutional law."
Greg Nevins, a staff attorney with the Lambda Legal Defense and Education Fund, a gay rights group, called the decision "a grave disappointment" and accused the court of abdicating its responsibility to strike down a discriminatory law.
On the other side of the issue, a leader of the conservative civil liberties legal group Liberty Counsel 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."
Cates said the ACLU's next options include asking the federal court to reconsider its ruling or asking the U.S. Supreme Court to hear the case. "We don't know what the next step is," he told The Advocate.