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George W. Bush says he’s “troubled by activist judges” who are letting gays and lesbians marry. He’s half-right. In the controversy raging over the place of gays in American society, some judges have indeed ignored the Constitution and Supreme Court precedent to impose their personal morality onto the public. No, not the judges who have been blessing gay unions. The ones I’m talking about are the judges who have embraced a forthrightly homophobic law, grounded in a history of bigotry, that prohibits gays and lesbians in Florida from adopting children. If the president wants to rant and rave about activist judges perverting the law, he should give a full accounting of the offenders. The people he might have the greatest need to explain himself to are a few gay couples from Florida, who are part of a suit against the state. They are, for lack of a better word, saints. All have been acting as foster parents for Florida children, some of whom have intensive needs. Take the named plaintiff, Steven Lofton. He is a registered pediatric nurse. He and his partner, Roger Croteau, provide state-approved foster care for three boys, all of whom were born HIV-positive. In Lofton and Croteau’s home, the medical condition of one of the boys has improved so dramatically that he now tests negative for the AIDS virus. But when Lofton and the other gay plaintiffs applied to adopt their foster children, the state refused. It pointed to a Florida statute that could hardly be more explicit in its animus to gays and lesbians. It states: “No person eligible to adopt � may adopt if that person is a homosexual.” A unanimous three-judge panel of the Eleventh Circuit U.S. Court of Appeals upheld that law in late January in Lofton v. Secretary of the Department of Children and Family Services . The opinion’s reasoning isn’t merely flawed; it’s downright mean. The gay couples had two main arguments. The first was that the Supreme Court’s opinion last year in Lawrence v. Texas , which struck down laws making gay sex a crime, means that the state can’t use the couples’ homosexuality to keep them from adopting children. The argument is a bit of stretch — every parent who has never been convicted of a crime but still loses custody of a child can attest to that. But Lawrence does give the gay couples some support. The Supreme Court made clear it was specifically concerned about the “stigma” that criminal sanctions impose on gays for merely acting on their sexuality. As the opinion states, the “Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.” It’s at least plausible that a similar “collateral consequence” the Constitution would bar is a blanket prohibition on gays adopting children. The Eleventh Circuit, however, completely ignored that part of Lawrence . Instead, the judges made clear that they didn’t like Lawrence , complaining that the opinion’s “language and reasoning are inconsistent with standard fundamental-rights analysis.” Excuse me? It’s not usually the role of appellate judges to insult decisions handed down by their constitutional superiors. If the Eleventh Circuit judges think that Lawrence is “inconsistent” with their understanding of the law, it’s time for them to start understanding the law differently. What the Eleventh Circuit did next is inexcusable — it insinuated into its opinion a subtle nod to the old and vicious blood libel that gays prey on children. In trying to distinguish gay adoption, the Eleventh Circuit quoted Supreme Court language that Lawrence “does not involve minors.” It’s clear from the context of that quote that the Supreme Court was saying that its opinion addressed sex between consenting adults, not sex involving minors. So the Eleventh Circuit could have simply stated that Lawrence speaks to gay sex, is silent on gay adoption and ended it there. Instead, the court turned Lawrence‘s compassion on its head. The court wrote that the actors in Lofton “are not only consenting adults, but minors as well.” In doing so, it misrepresented Lawrence , by implying that the Supreme Court affirmatively excluded gay adoption from the protection that it gives to gay sex. And even worse, the Eleventh Circuit’s language clearly implies that it viewed gay adoption as legally akin to having sex with minors. Lovely. The Eleventh Circuit’s activism didn’t end with disrespecting and distorting Lawrence . It did the same to the Supreme Court’s other significant gay rights decision, Romer v. Evans . In that 1996 case, the justices held that Colorado violated the U.S. Constitution’s equal protection guarantee by amending its own constitution to exclude gays from any protection of civil rights laws. In the Florida adoption case, the gay couples’ second main argument stemmed from Romer : They claimed that Florida violated the equal protection clause, just like Colorado, by singling out gays for special discriminatory treatment. Romer is a somewhat tricky decision. Since the New Deal, courts considering equal protection cases have usually struck down only those laws that discriminate against a very few “suspect classes” of people. The paradigm, of course, is laws that draw distinctions by race. Courts apply “strict scrutiny” to such laws — a test that is usually, as the expression goes, “fatal in fact” to the statute or regulation being challenged. Laws that draw classifications between other sorts of people receive a much more cursory review, merely to ensure that there is a “rational relationship” between the law and some “legitimate” state interest. In Romer , the Supreme Court declined to treat homosexuality as a suspect class. But it still struck down the amendment to the Colorado Constitution. It did so, according to the opinion, because even the “rational basis” test requires that classifications rest on more than simple status, and that the law be aimed at some potential social benefit. If a law is written simply for the “purpose of disadvantaging the group,” it’s no good. In Lofton , the Eleventh Circuit acknowledged, and then ignored, that key aspect of Romer . Unlike the Colorado law, according to the judges, the Florida law is not so “sweeping” that it implies animus to gays. After all, it only involves adoption. Never mind that within the realm of adoption, the law is indeed sweeping: It prohibits all gays from adopting (though Florida courts have interpreted it to apply only to “practicing” gays). In any case, all that Romer requires is that a law target a group for no valid reason. The way the Florida statute was created is condemnation enough — not that the Eleventh Circuit examines the history. According to Florida’s St. Petersburg Times : “The law, passed in 1977, was part of the anti-gay rights crusade of former beauty queen and Florida orange juice promoter Anita Bryant. At the time, Bryant whipped up sentiment with her �Save Our Children’ campaign by demonizing homosexuals as dangerous role models.” There’s all you need to see the Florida law for what it is. Having dodged the implications of Romer , the Eleventh Circuit freed itself to advance prejudice toward gays and lesbians. For instance, the court brushed aside the significance of the fact that Florida does not categorically prohibit some very suspect groups from adopting children. Drug users? Child abusers? Nope. They’re only banned if they’ve been convicted of felony crimes related to their actions. Drug abusers, according to the court and the parties, cannot adopt “if it is determined that the abuse threatens the child.” That kind of case-by-case determination is not applied to gays and lesbians. But the biggest travesty asserted by the Eleventh Circuit is the state’s claim that it is acting in the “best interests” of the children. According to the judges, Florida is free to establish that an “optimal home” for children awaiting adoption is one where “there is a heterosexual couple or the potential for one.” This reasoning combines insult and injury, the first to all gays and lesbians, and the second to all children under the state’s care. To gays and lesbians, the court said heterosexuals are “better positioned than homosexual individuals to provide adopted children with education and guidance relative to their sexual development.” That not only implies that homosexuals cannot successfully raise heterosexual children. It also implies that if children raised by homosexual parents grow up to be homosexual themselves, this would be very bad. In other words, the court and the state endorse the idea that it’s worse for a person to develop into a homosexual adult than into a heterosexual one. If there’s any doubt, consider that neither the Eleventh Circuit nor Florida seems to be concerned that heterosexual parents might impute their own sexual orientation to adopted children who would otherwise develop into homosexual adults. And to adoptable children, the Eleventh Circuit has said that it’s better to remain as wards of the state, at best in a temporary foster home, than to be adopted by gay couples. Maybe Florida can afford to wait for those heterosexual “optimal homes” it wants for its children. But in the meantime, the kids are stuck in the emotional and physical limbo of having no permanent home. Many will never get an “optimal” family — and so will never get any family. In whose best interest is that? There are more troubling questions that the Lofton decision actively skirts in its undue deference to Florida. Why are gay couples good enough to be foster parents but not adoptive ones? Do any of the state’s arguments against gay adoption make sense when the court distinguishes between “practicing” and celibate gay couples? Even if there is no legal right for anyone to adopt a child, doesn’t the Constitution still require the state to let all people apply to adopt on an equal basis? And how does Florida get away with refusing to allow gay couples to marry, and then turning around and asserting that gays can’t adopt, in part, because they can’t provide married households? No court or judge is perfect. And the legal system is at its weakest when it has to turn the creaking gears of the law quickly to keep up with rapid social change. The problem with Lofton then isn’t that it upheld Florida’s law. An opinion that honestly embraced Lawrence and Romer , but ultimately found the precedents lacking, could be worthy of respect. But that’s not what the Eleventh Circuit did. The judges flippantly distorted Supreme Court cases and insulted gay Americans. That’s not cautious — it’s wrong. Evan P. Schultzis associate opinion editor at The Recorder ‘s Washington, D.C.- based affiliateLegal Times, where his column, ” Controversies & Cases,” appears regularly. He can be reached at [email protected].

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