By Amy Berg
Thursday, August 16, 2001
In Florida, gay and lesbian couples may be foster parents, but the law bars homosexuals from adopting. A class action lawsuit alleges unconstitutional discrimination against gays, and on Friday a federal judge could set a trial date.
(WOMENSENEWS)--A federal court in Florida is expected to decide Friday whether to allow a trial in the ground-breaking federal lawsuit challenging state adoption laws that ban homosexuals from adopting.
Florida, where President George W. Bush's brother Jeb is governor, has the most restrictive adoption laws in the nation, banning both gay men and lesbians from adopting, although, ironically, either may be foster parents. However, that may change as the state is preparing to turn over its foster care system to private organizations, some of which are managed by religious organizations that hold discriminatory beliefs.
On Friday, the U.S. District Court in Key West may set a trial date in a class action lawsuit that alleges the Florida adoption laws unjustly discriminate against gays and lesbians and violate the right to equal protection under the 14th Amendment of the Constitution.
Moreover, the state's forthcoming turnover of foster care placement to private, including faith-based, organizations might mean that gay men and lesbians would no longer be welcome in the foster care system.
The suit was filed by Steven Lofton who, along with his partner, was a foster parent. For more than 10 years they had provided a foster home to HIV-positive children, one of whom died, and to children with other ailments. They had sought to adopt the children but were prevented by the 1977 anti-gay adoption law that states, "No person eligible to adopt may adopt if the person is homosexual." Lofton and his partner now live in Oregon.
The lawsuit also cites the case of a heterosexual couple, Brenda Lynn Bradley and Gregory Dale Bradley of Nevada. The couple several years ago wanted to name a Florida gay couple as adoptive parents of their children in case of tragedy.
That arrangement was also prohibited by Florida's adoption law, championed by a once-popular singer, Anita Bryant, in an anti-gay rights campaign
In defense of its position in the current lawsuit, Florida claimed in July that the state "is constitutionally permitted to legislate in furtherance of public morality both as to the moral environments of children and as to restrictions on who may be recognized as a legal family."
The state's arguments went on to say that gay couples are not recognized as "families" because the law prevents them from marrying and, therefore, homosexual households lack fathers and mothers.
About 14,500 children are in foster care in Florida and another 2,000 are awaiting adoption, many of them difficult to place.
Lofton v. Kearney, filed on behalf of all gay men and lesbians prohibited from adopting, names the state's attorney general, Kathleen A. Kearney, as the defendant. The American Civil Liberties Union represents Lofton and others.
"The state legislature cannot go and pass a law that blocks an entire group of people because of who they are," said Eric Ferrero, spokesperson for the ACLU National Lesbian and Gay Rights Project.
Ferrero added he believed that the case would go to trial by the late fall.
Advocates for gay and lesbian adoption rights are also concerned that Florida's recent decision to turn foster care placement over to private organizations, both religious and secular, could mean further discrimination against gays and lesbians wishing to care for children.
"With faith-based groups as decision makers in foster care placement, there is always the possibility that discrimination might go further," Joyce S. Dove, a Tallahassee adoption attorney said. Dove has been active in gay and lesbian adoption issues for the past decade.
Beginning in January 2003, the state Department of Children and Families will officially turn over placements to private organizations, both religious and secular, and will monitor them. Some contracts, however, have been awarded. The Young Men's Christian Association and the Florida Baptist Children's Home are two organizations that will take on what has been a state function.
About half of the organizations likely to receive contracts are faith-based, and the teachings and practices of some discriminate against gays and lesbians, single mothers, and unmarried men and women living together, according to advocates.
The main reason for privatization appears to be inadequate state funding for child welfare services and the ability of private organizations to obtain more funding from state and other sources, said Cecka Green, spokeswoman for the state's Department of Children and Families.
Green, citing the federal lawsuit, said the department could not comment on possible discrimination against gays and lesbians seeking to adopt or to be foster parents.
The involvement of faith-based groups in foster care placements worries gay rights advocates.
"The evolution of privatization of the foster care system to all faith-based groups brings the interesting, yet controversial, decision of who is entitled to adopt into the hands of the church," said Dove.
Many children in foster care and those awaiting adoption are difficult to place. Some are HIV-positive and many babies have special needs, such as attention deficit disorder, asthma, autism, fetal alcohol syndrome, epilepsy and mild mental conditions, according to the Department of Children and Families.
Of the children awaiting adoption or foster placement, 80 percent wait more than two years and 36 percent wait more than four years, according to mutually agreed upon state statistics used in Lofton vs. Kearney.
"It makes a bad situation worse when you privatize functions of government," said Nadine Smith, executive director of Equality Florida. Private religious groups are more committed to ideology than to public benefits, Smith added, and could use religion as a cloak for bias.
"Everyone who has a commitment to better government has to keep a close eye on turning public functions to private enterprise," Smith added.
The adoption law was sponsored by then state Sen. Curtis Peterson. In 1977, during Anita Bryant's crusade, he was quoted as saying the purpose of the bill was to send a message to the gay community: "We're really tired of you. We wish you'd go back in the closet."
Amy Berg is a free-lance writer in Los Angeles.