Supreme Court Lets Florida GLBT Adoption Ban Stand

January 10, 2005

WASHINGTON, DC — The Supreme Court declined today to hear a challenge to Florida's ban on adoption by gay people, the only such state law in the country.

The justices refused without comment to consider an appeal by four Florida men who had argued that the 1977 law violated their rights to equal protection under the United States Constitution, and that it was irrational because it automatically excluded potential adoptive parents for abandoned children.

The case, Lofton v. Secretary of the Florida Department of Children and Families, 04-478, had been closely watched as a possible test case. But with the Supreme Court's refusal to consider it, the final word is that of the United States Court of Appeals for the 11th Circuit, in Atlanta.

A three-judge panel of the circuit ruled last January that the Florida Legislature had the right to enact the law. The full circuit voted, 6 to 6, not to review the panel's conclusion, leaving the plaintiffs with only a possible appeal to the Supreme Court, a hope that was dashed today.

The panel's opinion was written by Judge Stanley F. Birch Jr., who noted that under Florida law adoption is not a right but a privilege.

Because of the primacy of the welfare of the child, the state can make classifications for adoption purposes that would be constitutionally suspect in many other areas, Judge Birch wrote. People who hope to adopt, he said, are electing to open their homes and their private lives to close scrutiny by the state.

The opinion did not condemn gay lifestyles. Referring to the plaintiff Steven Lofton, a pediatric nurse who has raised from infancy three foster children infected with the virus that causes AIDS, it noted that by all accounts, Lofton's efforts in caring for these children have been exemplary.

Other plaintiffs in the case have also raised foster children. But foster care is meant to be temporary and cannot be seen as an automatic prelude to adoption, the ruling stated.

Child-welfare groups advocates had urged the Supreme Court to take the case. So had the American Civil Liberties Union's Lesbian and Gay Rights Project.

In his January 2004 ruling, Judge Birch said the state's primary concern is not those prospective parents who would like to adopt but, rather, the children who are destined for adoption.

Openly homosexual households represent a very recent phenomenon, and sufficient time has not yet passed to permit any scientific study of how children raised in those households fare as adults, he wrote.

Given this state of affairs, it is not irrational for the Florida Legislature to credit one side of the debate over the other. Nor is it irrational for the Legislature to proceed with deliberate caution before placing adoptive children in an alternative, but unproven, family structure that has not yet been conclusively demonstrated to be equivalent to the marital family structure that has established a proven track record spanning centuries.

And should the State of Florida wish to reconsider its policy, the Legislature is the proper forum for this debate, not the courts, Judge Birch wrote.