On Monday, January 10, the highest courts of two Western democracies—the United States and Israel—confronted the question of gay adults adopting kids. One ducked while the other took it on and issued a landmark ruling.
Guess which did what?
In Israel, the High Court of Justice voted 7 to 2 that lesbian partners could seek to adopt each other’s children, and returned the case to the Family Court for a “best interest of the child” determination required for formal judicial approval of an adoption.
In the United States, the Supreme Court refused to review last year’s decision by the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, which rejected a constitutional challenge to a Florida statute that bans “homosexuals” from adopting children. As a result, the foster children of gay plaintiffs, one of whom is named Steve Lofton, will remain in an uncertain status until they reach adulthood.
The Supreme Court’s refusal to review the Lofton decision was a major disappointment for the gay public interest groups that brought the case. It was also somewhat surprising, given that the 11th Circuit was evenly split, 6 to 6, on a petition from the plaintiffs for the full circuit to reconsider the original three-judge panel decision. The refusal to reconsider had a sharply partisan edge—there would have been a majority in favor of re-hearing the case but for the vote of William H. Pryor, Jr., the former Alabama attorney general whose strict conservative views on issues from choice to federalism led Senate Democrats last year to block his nomination to the bench, after which Pres. George W. Bush gave him a temporary, one-year recess appointment. (The president must now re-submit the nomination to the Senate, and in an e-mail to Gay City News, New York Sen. Charles Schumer, a Democrat and a leader in the anti-Pryor fight last year, said, “Judge Pryor hasn’t changed his way-out-of-the-mainstream views and it is highly unlikely that anyone in the Senate will change their views—and to nominate judges previously rejected by the Senate is wrong.”)
Beyond the issue of the nation’s sharp partisan divide on the federal judiciary, the Lofton appellate decision also reads like a lower court rebellion against the underlying philosophy of the Supreme Court’s two major gay rights decisions—the 2003 Lawrence v. Texas ruling throwing out the nation’s sodomy laws and the 1996 Romer v. Evans decision that struck down a Colorado constitutional amendment that barred the state and local governments from enacting gay rights measures.
Matt Coles, director of the Lesbian and Gay Rights Project of the American Civil Liberties Union (ACLU), which represents the plaintiffs and filed the petition with the Supreme Court, pointed out that “there are more than 8,000 children in Florida foster care, some of whom surely would have found permanent homes if the law had been struck down. No judge in this case ever looked at the social science on the ability of gay people to parent. Since this case was decided, however, a court in Little Rock heard from the top experts in America and concluded that sexual orientation has nothing to do with whether someone is a good parent.”
Coles was referring to a late December trial court ruling in Arkansas invalidating that state’s regulatory ban on gay adults serving as foster parents.
Lambda Legal, which filed a friend-of-the-court brief when the case was pending before the appeals court in Atlanta, was also critical of the result.
Pat Logue, senior counsel at Lambda, said that “it is a crime to let prejudice keep children from being adopted” and pointed out that no other state currently maintains such a categorical ban.
In Romer v. Evans, the Supreme Court held that anti-gay animus, or moral disapproval of homosexuality, could not provide a constitutionally legitimate basis for adopting openly-anti-gay state laws, in that case a Colorado state constitutional amendment that specifically excluded gay people from any civil rights protection. In Lawrence v. Texas, the Court struck down a state criminal statute that made gay anal or oral sex a misdemeanor while imposing no criminal penalties on opposite-sex couples who engaged in exactly the same conduct.
In both cases, the Court sent a clear message that gay people are not second-class citizens in this country and are entitled to equal treatment under the law, regardless of whether a majority of legislators or voters in a referendum disapprove of them. In fact, Justice Anthony Kennedy’s opinion for the Court in Romer specifically stated that the Constitution does not recognize different classes of citizens.
In light of these past rulings, the 11th Circuit appeals decision was hard to explain other than politically. The appeals court adopted the narrowest possible readings of the Supreme Court precedents, confining them to their specific fact situations, and decided that Florida’s ban on gay adoptions should be upheld if any plausible non-discriminatory reason could be found for it. The appeals court ruling concluded that Florida was entitled to believe, without any proof, that it was better for children to be raised by “traditional” families and thus reasonable to exclude gay people from the pool of potential adoptive parents. The court purported to apply a so-called “rational basis” test, but it stood rationality on its head in light of the facts presented.
The ACLU, representing two gay male couples—Steven Lofton and Roger Croteau, and Wayne Smith and Dan Skahen—who are serving as long-term foster parents but were held disqualified by law from adopting their children, argued that the policy was irrational, in light of the large number of children in Florida awaiting adoption, the demonstrated parenting skills of the plaintiffs, who had won commendations for their effective foster parenting, and Florida’s willingness to entertain adoption petitions from single adults and from adults with criminal histories that raise serious doubts about their suitability as parents. The plaintiffs also include Doug Houghton, a gay man who has been serving as a legal guardian for a child but is disqualified from adopting, even though the child’s legal father wants Houghton to be able to do so.
In light of the history of the Florida statute, enacted in a legislative rush amidst the heightened passions of Anita Bryant’s 1977 “Save Our Children” campaign to repeal a gay rights ordinance in Miami-Dade County, the ACLU argued that the statute was not based on a legitimate legislative policy but solely on moral disapproval of gay people. Indeed, one of the proponents of the law had stated on the floor of the Florida Legislature that the purpose was to tell gays to “go back into the closet” because they were not liked.
The 11th Circuit Court took the position that this legislative history was irrelevant.
In the Lofton court opinions, which generated lengthy opinions by the trial judge and the appellate panel, as well as extended opinions about whether the circuit court should reconsider the case, there is a clear failure to confront openly the fears and misunderstandings that underlie Florida’s insistence on maintaining this policy. Florida is drastically short of adoptive households for the long waiting list of children, and has pressed gay adults into service as long-term foster parents while denying them the right to adopt. By keeping them foster parents, the state maintains the right to remove the children at any time without warning, and to make intrusive inquiries into the current status of the household. Once an adoption is approved, the state no longer plays any supervisory role.
Because the Supreme Court does not announce its internal votes on petitions for review, and the justices only announce their dissents from such votes on rare occasions, we have no direct insight into why the Court turned down this case. It may be that a majority of the justices agreed with the lower court’s opinion, but it could just as well be that they felt that it was not time to take this issue on, or that because the lawsuit involved a unique state law the case did not have national significance. The Court usually tries to limit its caseload by picking cases of pressing national importance, exemplified by divisions among the lower courts in interpreting federal laws or applying federal constitutional provisions.
The Court applies a “rule of four” to the decision whether to hear appeals. Four members of the Court are reliable supporters of gay rights—Justices John Paul Stevens (who dissented in the 1986 Bowers v. Hardwick ruling upholding Georgia’s sodomy law and wrote a hard-hitting dissent in Boy Scouts of America v. Dale), David Souter, Ruth Bader Ginsburg and Stephen Breyer. These four could have secured review for the case, but would likely have held back if they thought a fifth vote could not be found to overturn the lower court decision. That would require attracting a vote from either Justice Anthony Kennedy, the author of the Court’s opinions in Romer and Lawrence, or Justice Sandra Day O’Connor, who joined the majority in Romer and concurred separately in Lawrence. Uncertainty about how either of these two would vote may have stayed the hands of the other four.
Of course, it is also possible that on the politically volatile issue of gay people and children, even our most reliable Supreme Court champions may have reservations.
Any conclusion that this case is of purely local Florida significance, however, is wrong because anti-gay forces in several states have been pushing proposals to limit or ban gay adoptions in recent years, and in some quarters the Court’s denial of review will be read as a tacit approval of the Florida law. Indeed, some newspaper headlines reporting on the case have already sent an incorrect message that the Supreme Court has “upheld” the Florida law. The Court’s action expresses no opinion about the law at all.
The U.S. Supreme Court has issued some very gay-friendly rulings in recent years, but it has yet to render a decision in a gay family-related matter, although it has had frequent opportunities to do so as disappointed gay litigants have filed petitions to review state court decisions. The Supreme Court rarely involves itself in family law situations, recognizing this as an area of law that is preeminently a state rather than federal concern. However, in a landmark case that is frequently cited by gay litigators, the Court ruled in 1984 that Florida violated the Constitution by refusing to allow an African-American man who had married a Caucasian woman to adopt her children.
After noting Florida’s purported justification for its ban on such interracial step-parent adoptions—that the children would be subject to societal prejudice—Chief Justice Warren Burger wrote for the Court on that occasion: “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”
In this case, clearly, the law is giving such biases overriding effect.