Florida's gay adoptions statute has narrowly withstood another legal challenge, but with some dissenting federal judges seizing the chance to condemn the nation's only blanket ban on adoptions by gay people. In a 6-6 vote, the 11th U.S. circuit court of appeals in Atlanta declined Wednesday to reconsider the case of four gay men who were previously ruled against by a three-judge panel of the court. But one dissenting judge said the law is "irrational" under the equal protection clause of the Constitution because it singles out gays and no other groups. Another said he would move to change the law if he were a Florida legislator. Former Alabama attorney general William Pryor, named by President Bush to the 11th circuit court during a highly contested recess appointment earlier this year, cast his vote against a review. Pryor has come under fire from gay rights groups for a brief he filed in the Texas sodomy case last year in which he compared homosexuality to "prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia."
The American Civil Liberties Union filed the request for the full appeals court to hear the case after the three-judge panel in January ruled against the men, foster parents seeking to adopt children in their care. "Coming this close to having the whole court consider the issue is little consolation to the thousands of children in Florida foster care who are in need of permanent homes," said Leslie Cooper, attorney for the ACLU's Lesbian and Gay Rights Project. The men wanted the court to overturn a 1977 law, passed at the height of Anita Bryant's antigay campaign, that leaves Florida as the only state with a complete ban on adoption by gays, either as couples or single parents. The three-judge panel had ruled that the issue was one that should be decided in the legislature, upholding a Miami federal judge's ruling dismissing the original class-action lawsuit, filed in Key West. The state earlier defeated challenges in state courts.
Gov. Jeb Bush said Thursday the decision not to reconsider the case "validates Florida's conclusion that it's in the best interest of adopted children to be in homes anchored by both a father and a mother." But in a sharply worded dissenting opinion, Judge Rosemary Barkett, formerly of the Florida supreme court, noted that no other groups, including child molesters and domestic abusers, are barred from adopting in Florida. "In a very real sense, Florida's adoption statute treats homosexuals less favorably than even those individuals with characteristics that may pose a threat to the well-being of children," Barkett wrote. Barkett's opinion also noted that Florida allows single people to adopt and allows gays to be permanent foster parents. "In the context of adoption, this disparity of treatment on the face of the statute amounts to the purest form of irrationality," Barkett wrote.
Judge Stanley F. Birch Jr., concurring with Barkett, included a personal note that he would vote in favor of allowing gays to adopt were he a Florida lawmaker. "I consider the policy decision of the Florida legislature to be misguided and trust that over time attitudes will change and it will see the best interests of these children in a different light," Birch wrote. Mathew Staver, president of the conservative legal group Liberty Counsel, said the judges were wrong to make the comparison between single parents seeking adoption and adoptions by gays. "Putting someone in a same-sex household is fundamentally different than putting them in a household [that] is not homosexual because that person likely has the potential to marry and raise the child with a mom and a dad," Staver said. The ACLU said it is reviewing its legal options.