ACLU Asks U.S. Supreme Court to Hear Appeal in Challenge to Florida Gay Adoption Ban

Affiliate: ACLU of Florida
October 1, 2004 12:00 am

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NEW YORK – The American Civil Liberties Union today asked the U.S. Supreme Court to hear an appeal in a case challenging a Florida law that bars gay people from adopting.

“Florida excluded gay people – and only gay people — from its system for evaluating adoptive parents for one reason: to punish gay people. More than once, the Supreme Court has said that won’t fly,” said Matt Coles, Director of the ACLU’s Lesbian and Gay Rights Project. “For the sake of the many children in Florida who are without families and for the many lesbian and gay people willing to give them homes, we hope the Court will take the case and declare once and for all that this law is unconstitutional.”

The ACLU’s request to the Supreme Court comes after the federal Court of Appeals for the 11th Circuit narrowly upheld the law. By a vote of six-to-six, the full court declined to reconsider an earlier decision by a three-member panel of the appeals court upholding the ban. The opinion denying reconsideration showed the court sharply divided over the case. Judge Stanley Birch, who wrote the original decision upholding the ban and voted against reconsideration, even went so far as to note that the ban was bad policy and said that if he were a member of the Florida legislature he would be opposed to the law.

“This case has important implications for Florida families and gay people across the country – but especially the children languishing in our state’s troubled foster care system,”” said Howard Simon, Executive Director of the ACLU of Florida. “”We now must turn to the U.S. Supreme Court to protect children and families from the ugly prejudices of politicians against gay people that have been disguised as legitimate public policy.””

In the petition submitted to the Supreme Court, the ACLU urges the Court to take the case because lower courts have refused to follow the Court’s earlier admonishments in two earlier cases, Romer v. Evans and Lawrence v. Texas, that states are prohibited from adopting laws designed to disadvantage gay people. The Florida legislature adopted the challenged law during Anita Bryant’s infamous anti-gay crusade. The bill’s sponsor in the state Senate told a local newspaper at the time that the law was intended to send this message to lesbians and gay men: “[w]e are really tired of you. We wish you’d go back in the closet.”

“We came frustratingly close to having the appellate court reconsider this case,” said Chris Zawisza, an attorney representing the children involved in the case. “But coming close doesn’t do a thing for the families we represent who are raising children in Florida but are banned from giving them the legal security they deserve or for the 5,000 children waiting in foster care who could be given a chance if they could find families to adopt them.”

Even though the state categorically excludes lesbian and gay men from adopting, it frequently relies on gay people to be foster parents to children in need of stable homes. Two of the three families represented by the ACLU in the case are raising Florida foster children. Steven Lofton and his partner Roger Croteau are raising five children, including three foster children from Florida. Although the children — ages 17, 16 and 13 — have never known any other family, they cannot be adopted by Lofton or Croteau because of Florida’s law. Wayne Smith and Dan Skahen are now foster parents to two children but over the years have willingly taken in other children as needed. A family court judge issued a novel court order granting Smith and Skahen “permanent legal custody” of one of their two children in an effort to provide the child with greater family security.

The third family represented in the case is headed by Doug Houghton, who has been the legal guardian of a 13-year-old boy for nine years. Even though the child’s biological father would prefer for Houghton to be the legal parent, Houghton can’t adopt him because of Florida’s law. The Miami federal court that originally dismissed the lawsuit said that Houghton and the boy are just as close as biological parents and their children.

The U.S. Supreme Court is expected to decide whether or not to hear an appeal in the case by early January.

The case is Lofton v. Kearney. For additional information, including a copy of the brief filed today, visit

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