Supreme Court does Anita Bryant proud

Published January 13, 2005 2:05AM (EST)

In the state of Florida, it seems, you may be eligible to adopt a child even if you have a history of doing drugs or committing violence inside the home -- you just can't be gay. Moreover, Florida's specific statute preventing homosexual men and women from becoming adoptive parents, on the books since 1977, isn't likely to go away anytime soon; the U.S. Supreme Court refused on Monday to hear a challenge to the law.

"Florida's is the only such statute in the country, and the prohibition is the only categorical adoption ban on the state's books," reported the New York Times earlier this week. "Florida evaluates adoption applications from all other would-be adoptive parents, including those who have failed at previous adoptions and those with a history of drug abuse or domestic violence, on a case-by-case basis."

There are several other jaw-dropping aspects to this story, not least that the lead plaintiff in the case, Steven Lofton, appears highly qualified as a parent and has gone to heroic lengths to help the offspring of the kind of shady folks whom Florida apparently would still consider for the job of adoptive parent -- the job that Lofton himself can't legally have. According to the Times, Lofton is a licensed foster parent who has taken in eight children with H.I.V. or AIDS, winning an award as the outstanding foster parent of the year from the agency that placed the children in the home he has shared for 20 years with his partner, Roger Croteau. The boy identified in the case as John Doe, now 13, has been with the couple since infancy.

The Florida statute was enacted in 1977, in the midst of an anti-gay campaign led by the singer and infamous Florida orange juice pitch-person Anita Bryant. Curtis Peterson, the state senator who sponsored the measure, said at the time that the legislation's message to the gay community was "we're really tired of you" and "we wish you'd go back into the closet."

But times have changed, right? Not exactly. The Lofton case was knocked down at the federal circuit court level, where it might have otherwise been reviewed before moving in front of the Supreme Court -- and last year's controversial recess appointment of Justice William H. Pryor by President Bush may have tipped the scales: The U.S. 11th Circuit Court of Appeals, according to the Times, "deadlocked 6 to 6 on whether the full court should rehear the case. The rehearing request failed because a rehearing requires a majority vote. One of the judges voting against rehearing the case was William H. Pryor Jr., who was named to the appeals court as a temporary recess appointment by President Bush during an 11-day Congressional recess last February. Had Judge Pryor not participated, the appeals court would have reconsidered the case. The validity of the Pryor appointment -- whether the president's constitutional authority to make appointments 'during the recess of the Senate' to positions ordinarily requiring Senate confirmation applies to such short recesses -- is the subject of a separate case that has been appealed to the Supreme Court."

The Supreme Court refused without comment this week to review Lofton v. Secretary of the Department of Children and Family Services; FindLaw columnist Joanna Grossman, who offers an incisive history and analysis of the case, explains one possible technical reason why: "The case does not present a split among federal circuits about the proper interpretation or application of a federal statute or constitutional right -- a typical reason for the Court to grant review. Since Florida's statute is unique, other circuits have not faced the question. Its uniqueness may have done in its chances for review."

But the nation's top court blew it, Grossman adds, because the case offered a prime opportunity to elaborate on Lawrence v. Texas, the landmark June 2003 ruling that struck down Texas' criminal sodomy law, as well as Romer v. Evans, a 1996 case striking down an anti-gay statute in Colorado.

"Gays are the only group categorically excluded from adopting in Florida," she writes. "As a brief filed by the Child Welfare League of America noted, Florida allows adoptions, for example, by those who are single, disabled, divorced, and even, in some cases, by convicted felons.

"Given the openly anti-gay origins of Florida's law, it would have been hard for the Supreme Court to find the law constitutionally valid. If any law was 'born of animosity' toward gays, it is this Florida statute."

For his part, the president's brother and Florida Gov. Jeb Bush said he was pleased with the Supreme Court's stance, according to the St. Petersburg Times. "It's the law of the state," Bush remarked, "and I think it's the appropriate law."

Right-wing Christian leaders backed that gospel: "We're just pleased that children are going to get protected," said Florida Christian Coalition executive director Bill Stephens, "that courts are doing what's in the best interest of children and keeping them in heterosexual homes."

Of course, that's more of a faith-based position than a fact-based one, as Grossman points out. "Not only was the Florida law born of bias, it is directly contrary to science," she says. "A significant number of studies, which I have discussed in a column for this site, suggest that children with gay parents 'fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual.'"

Banning gay adoption in the Sunshine State or anywhere else is therefore "cruel to children," she says. "The verdict is in: Permanent, legally binding parental relationships serve the interests of children, regardless of the parent's sexual orientation. Thus, Florida's approach -- and the Supreme Court's failure to put a stop to it -- will only end up hurting thousands of children, for no good reason at all."

By Mark Follman

Mark Follman is Salon's deputy news editor. Read his other articles here.

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