Florida’s Gay Adoption Ban
What happens when gay dads, who have been terrific parents to foster children, want to adopt them in a state where lesbian and gay adoption is prohibited? That is the question that was before the Court of Appeals for the 11th Circuit in a case called Lofton v. Kearney. The case, which was the first of its kind to reach a federal appeals court, challenged Florida's 1977 law that bans gay and lesbian individuals and couples from adopting.
2004 Verdict
On January 28, 2004, the court ruled that Florida’s ban on adoptions by any "homosexual" person does not violate the United States Constitution. The families involved in this case and their legal counsel, the American Civil Liberties Union (ACLU), are now considering next steps.
Florida is the only state that explicitly prohibits adoption by gay and lesbian individuals and same-sex couples. Mississippi prohibits same-sex couples from adoption and second-parent adoption. Utah forbids adoption by any unmarried cohabiting couple, thereby discriminating against all same-sex couples.
Who Are the Families?
Three families, all headed by gay dads, are involved in the case. Steve Lofton, a stay-at-home father, and Roger Croteau are raising five children: Frank, 14, Tracy, 14, Bert, 10, Wayne, 8, and Ernie, 5. Frank, Tracy and Bert have been with Lofton and Croteau since they were infants, making this the only family that they've ever known. But because of Florida's ban, this may not be their permanent family. In fact, the state has been actively searching for a home for Bert, who was born HIV-positive, because he no longer tests positive and is now considered "adoptable."
Doug Houghton has been the legal guardian of an 11-year-old boy since the boy was 4 and his biological father asked Houghton, a nurse, to care for him because he could not. Houghton is seeking to adopt the boy, and the boy's biological father supports this, but the ban stands in the way.
Wayne Smith and Dan Skahen have raised three foster children and applied to be adoptive parents, but Florida also rejected them based on the ban.
Previous Cases
Since 1990, Florida state courts have rejected three lawsuits asking for the gay adoption ban to be overturned. In 1997, the judge declined to rule the law unconstitutional, saying, "If the state Legislature chooses to allow children to languish in foster care ... instead of opening the doors to homosexual households, it has that authority."
The ACLU filed the lawsuit in May 1999. In August 2001, a federal judge in Miami ruled for the state of Florida, declining to find that the Constitution prohibited Florida's law. In February 2002, the ACLU appealed the decision and the 11th Circuit Court of Appeals took the case. The ACLU and Florida's attorneys filed briefs with the court that argued their opposing positions. On March 4, 2003, lawyers for both sides appeared before the court and argued the case.
For more information about Lofton v. State, visit www.lethimstay.com.