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According to the U.S. Department of Health and Human Services, 586,000 children in the country were living in foster care in 2000; 117,000 of them were awaiting adoption. For many such children, the wait would be long and, for some, fruitless. In 2001, in Florida alone, more than 3,400 adoption-eligible youngsters had to remain in foster homes because of a lack of adoptive parents. Eighty percent stay in state custody for more than two years; 36%, for more than four years-a substantial fraction of their childhood. Moreover, the ones lucky enough to get permanent placements go disproportionately to single parents: 25% in the state as a whole and 40% in Miami-Dade County. Under these circumstances, Florida ought to be scouring the woods for qualified persons wanting to adopt. Yet, instead, the state bars all gay and lesbian individuals from becoming adoptive parents. As the American Civil Liberties Union stated in its certiorari petition in Lofton v. Secretary, Florida Department of Children and Families: “The Florida legislature took aim at gay adults, but those who have been most affected are orphaned children.” Although the U.S. Supreme Court recently declined to hear the Lofton suit-which unsuccessfully challenged the ban, primarily on equal protection grounds-the legislative branch should reverse course and repeal this invidious and harmful law. Florida law reflects homophobia The statute in question, enacted in 1977 at the height of the anti-gay campaign of Anita Bryant, a singer and former Miss Oklahoma, reflects virulent homophobia. In the words of its chief sponsor, state Senator Curtis Peterson: “We’re trying to send a message, telling [homosexuals]: ‘We’re really tired of you. We wish you’d go back into the closet.’ ” More sophisticated now-the Supreme Court’s 1996 Romer v. Evans decision had held that a law based upon a bare desire to hurt gays violated equal protection-the state in Lofton argued mainly that it serves the best interests of children to be placed with married mothers and fathers. The response to the petition did, however, assert that the Constitution cannot require the state to put its “imprimatur on sexual conduct in an adoptive home.” The latter contention merely restates Peterson’s moral disapproval in somewhat less provocative language. The district court rejected expression of such disapproval as a legitimate state interest, and the 11th U.S. Circuit Court of Appeals did not pass upon the question. But the former contention, regarding the best interests of children, and accepted by both courts as a rational basis for sustaining the statutory classification, is ultimately unpersuasive as well. One might perhaps debate whether the speculative arguments advanced in support of the child welfare rationale should suffice to repel constitutional challenge. The high court’s 2003 Lawrence v. Texas ruling intimates a negative answer: It invalidated a same-sex anti-sodomy law (applied to consenting adults in their home), as violative of due process, using a seemingly stricter standard of review. Yet regardless of constitutional niceties, plainly Florida’s ban only harms the children it purports to help. Simply put, it is abominable social policy. For one thing, even assuming that traditional married couples furnish the best adoptive homes, the children languishing in foster care do not realistically enjoy the option of such placements. The supply of youngsters vastly outstrips the demand by “ideal” would-be parents; as earlier noted, the state already relies heavily on single parents. Moreover, nontraditional families, including gays, are often willing to take in “special needs” youngsters: Steven Lofton, one of six plaintiffs in the suit bearing his name, has fostered eight children with HIV or AIDS. Indeed, when homosexuals like Lofton and his partner, Roger Croteau, are already raising children-Florida permits gays to serve as foster parents and legal guardians-the sole function of the adoption prohibition is to deprive de facto adoptive kids of benefits such as the legal rights to support and inheritance and, most important, the psychological assurance of permanence. But beyond all this, as the American Psychological Association has stated: “[T]he evidence to date suggests that home environments provided by gay and lesbian parents are as likely as those provided by heterosexual parents to support and enable children’s psycho-sexual growth.” Other relevant mainstream groups (for example, the Child Welfare League of America and the North American Council on Adoptable Children) also oppose anti-homosexual discrimination, advocating that gays-like others who wish to adopt-should be judged on an individual basis. The great majority of states agree: While two, Mississippi and Oklahoma, forbid adoption by gay couples, Florida alone prevents all gays from adopting. The time has come for these outliers to acknowledge that sexual orientation has nothing to do with parental performance. Vivian Berger, an NLJ columnist, is professor emerita at Columbia Law School.

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