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In a renewed attack, the American Civil Liberties Union will argue in federal appeals court in Miami today that Florida’s 1977 statute banning adoption by gays and lesbians violates their rights to due process and equal protection under the 14th Amendment. ACLU attorney Matthew Coles will tell a panel of the 11th U.S. Circuit Court of Appeals that the statute discriminates against gays and lesbians by singling them out as the only group in Florida denied the right to adopt. The ACLU claims the statute was enacted to express disapproval of gay people. “The heart of the case comes down to whether the federal constitution allows you to discriminate in order to make a political statement,” said Coles, director of the ACLU’s Lesbian and Gay Rights Project in New York City. But the state of Florida argues that the ban is meant to serve the best interests of Florida’s foster children by placing them in adoptive homes where they are exposed to married heterosexual role models. The state’s position relies heavily on testimony from some psychologists that children need such role models to develop “normal” sexual identification. “State courts have recognized that it is in the best interest of children to be raised by mothers and fathers that are married,” said Casey Walker, a partner at Moss, Henderson, Blanton, Lanier, Kretschmer & Murphy in Vero Beach, Fla., who is representing the state before the 11th Circuit. The statute, passed at the height of singer Anita Bryant’s anti-gay crusade, has been challenged several times before in state courts but has been consistently upheld. In 1995, the Florida Supreme Court held in State v. Cox that the statute was not unconstitutionally vague. But this is the first case challenging the law under the U.S. Constitution. The case before the 11th Circuit involves three gay couples who filed suit against the Florida Department of Children and Families in 1999 after being denied the right to adopt the foster children in their care. In August 2001, U.S. District Judge James Lawrence King dismissed their case on summary judgment. In his ruling, King noted that homosexuals are not a group granted higher protection under the equal protection clause of the 14th Amendment. Furthermore, adoption is not a fundamental right, such as freedom of speech or religion, that is protected by the U.S. Constitution, King said. In cases involving protected groups or fundamental rights, the state bears the burden of proving that the statutes serve a compelling state interest. Under this more stringent test, any law that targets a protected class or invalidates a fundamental right is presumed invalid unless the state proves it is narrowly tailored to serve the government’s interest. Cases that do not involve protected classes or fundamental rights, however, are reviewed under the “rational basis test” — a more lenient analysis. In these cases, the plaintiff bears the burden of proving the statute serves no legitimate purpose. King rejected the state’s first contention that it had a legitimate interest in enacting the adoption law to uphold public morality by expressing its opposition to homosexuality. But he accepted the state’s argument that the ban was in the best interest of the children. Coles will ask the 11th Circuit panel to overturn King’s ruling. ‘UNTHINKABLE’ TO TAKE CHILD AWAY Florida statute 63.042(3) states that “no person eligible to adopt under this statute may adopt if that person is a homosexual.” When the measure passed in 1977, Florida was the only state besides New Hampshire that banned gay adoption. In 1999, New Hampshire repealed its ban on gay adoption. Mississippi and Utah since have enacted bans on same-sex couples becoming adoptive parents. But, unlike Florida, the laws do not specifically rule out homosexual individuals. The plaintiffs in the case before the 11th Circuit are suing former DCF Secretary Kathleen Kearny and Charles Auslander, the former DCF district administrator in Miami-Dade and Monroe counties. Kearny and Auslander, who have since left the agency, were in charge at the time the plaintiffs’ adoption applications were denied. The first plaintiff, Steven Lofton, is a former pediatric nurse from Miami who has sought to adopt a 10-year-old boy he has raised since the child was 2 months old. The boy, who tested positive for HIV and cocaine at birth, is one of eight HIV-positive children Lofton and his partner, Roger Croteau, have cared for since becoming licensed foster parents in 1988. After three years in foster care, the boy became free for adoption after his mother’s parental rights were terminated in 1994. But when Lofton tried to adopt the boy, the DCF rejected his application because he refused to answer a question asking him to specify his sexual orientation. Since then, the boy has been placed in long-term foster care and now lives in Portland, Ore., with Lofton, Croteau and their four other foster children. In 1998, the DCF gave the couple permission to take the boy out of state. But in 2001, DCF officials informed Lofton that they had changed the boy’s placement goal from long-term foster care to adoption and were actively recruiting a new adoptive family. “It is unthinkable that DCF would even consider taking him away,” Lofton said in an affidavit to the court. “This is the only family he has ever known.” The second plaintiff, Doug Houghton, is the legal guardian of an 11-year-old boy he cared for while working as a critical care nurse at Jackson Memorial Hospital in Miami. Houghton has been the boy’s caretaker since the child was 4. The boy’s father, an alcoholic who gave his son to Houghton because he was unable to care for him, has agreed to give up his parental rights so Houghton can adopt him. The boy’s mother is dead. But DCF has rejected Houghton’s application to adopt the boy because he is gay. The third pair of plaintiffs is a Key West, Fla., couple, Wayne Smith and Daniel Skahen, who seek to adopt two male foster children, ages 5 and 6, who have been in their care for two years. Smith, a 47-year-old lawyer, and Shaken, a 36-year-old real estate broker, have been licensed foster parents since 2000. They were also rejected as adoptive parents because they are gay. FELONS ALSO EXCLUDED The ACLU claims that Florida’s adoption law is unconstitutional because it categorically excludes gays from adopting while evaluating other applicants on a case-by-case basis. Walker counters that gays are not the only group statutorily denied the right to adopt. Sexual predators and individuals with felony convictions for domestic violence and child abuse are also banned from adoption under Florida statute 435.045, he said. In addition, under DCF regulations, unmarried couples also are prohibited from adopting. The ACLU also contends that the 1977 law violates the due process rights of gay foster parents by invading their right to privacy. While the federal Constitution provides no fundamental right to adopt, the familial bonds between the plaintiffs and their foster children are constitutionally protected, the ACLU claims. The ban on gay adoption is not only unconstitutional, the ACLU says, but impractical. There are more than 3,400 children in Florida now awaiting adoption. It is not in their best interest to exclude a viable group of potential adoptive parents, the ACLU claims. “Excluding gay people from the pool will do nothing other than what is already does: keep children in foster care, often bouncing them from placement to placement, with no home at all,” the ACLU argues in its brief. The ACLU also claims the state was hypocritical in allowing gays and lesbians to be foster parents but not adopt. But the state claims that foster care differs from adoption because it is a temporary situation. The relationship between foster parents and their children is not constitutionally protected because it is an association created by the state and subject to government supervision. “No one’s happy about the fact that there are kids waiting for adoption,” attorney Walker said. “But the answer is working harder to find adoptive families, not lowering the standards.”

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