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Appeals court upholds Fla. ban on homosexual adoption

ATLANTA (BP)–A federal appeals court upheld Florida’s law prohibiting homosexual adoption Jan. 28, unanimously ruling that the state has a legitimate interest in seeking to place children in homes with a mother and father.

In a 3-0 decision, an 11th Circuit Court of Appeals panel ruled that the 1977 adoption law does not violate homosexuals’ rights under the U.S. Constitution.

The case involved several homosexual couples who were seeking to adopt children they had raised as foster parents. They argued that the law violated their right to privacy and their right to equal protection under the Constitution’s Fourteenth Amendment. They also relied heavily on the Supreme Court’s Lawrence v. Texas decision that overturned state anti-sodomy laws.

But the court disagreed, saying that adoption is a privilege, not a right.

The decision likely will be appealed, either to the full court or the Supreme Court. The men are represented by the ACLU.

Florida, Mississippi and Utah are the only states that prohibit same-sex couples from adopting. Florida’s law is considered the toughest because it prevents homosexual singles from adopting.

“[T]he state has a legitimate interest in encouraging this optimal family structure by seeking to place adoptive children in homes that have both a mother and father,” Judge Stanley F. Birch Jr. wrote in the 47-page decision. “Florida argues that its preference for adoptive marital families is based on the premise that the marital family structure is more stable than other household arrangements and that children benefit from the presence of both a father and mother in the home.

“Given that appellants have offered no competent evidence to the contrary, we find this premise to be one of those ‘unprovable assumptions’ that nevertheless can provide a legitimate basis for legislative action.”

The court said that because adoption is a “statutory privilege” and not a right, the state can place limits that otherwise would be “constitutionally suspect in many other arenas.” For instance, the state considers potential adopter’s mental and physical health, as well as income and housing. In addition, adopting parents sign an affidavit promising good moral character.

The state of Florida argued that a traditional family home offers something unique — the presence of both male and female figures — necessary for the child’s optimal development. The court agreed.

“Although social theorists from Plato to Simone de Beauvoir have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model,” the court said.

The court rejected the plaintiffs’ argument that a loving, caring relationship between same-sex partners should be enough to warrant an adoption.

“Under appellants’ theory,” the court wrote, “any collection of individuals living together and enjoying strong emotional bonds could claim a right to legal recognition or their family unit, and every removal of a child from a long-term foster care placement — or simply the state’s failure to give long-term foster parents the opportunity to adopt — would give rise to a constitutional claim.”

The court also rejected the plaintiffs’ claim that new social science research backs the equality of same-sex parenting. The court cited critiques of same-sex parenting research, such as the use of small samples.

“[S]ufficient time has not yet passed to permit any scientific study of how children raised in those households fare as adults,” the court stated.

Because Florida law allows single heterosexuals to adopt, the plaintiffs said the state is inconsistent in its policy. But the court said that even among straight singles, a stable family could be built.

“It is not irrational to think that heterosexual singles have a markedly greater probability of eventually establishing a married household and, thus, providing their adopted children with a stable, dual-gender parenting environment,” the court said.

But even if singles don’t marry, they are “better positioned than homosexual individuals to provide adopted children with education and guidance relative to their sexual development throughout pubescence and adolescence,” the court said.

While Florida law does not allow homosexuals to adopt, it does allow them to serve as foster parents. The plaintiffs said this was also inconsistent.

“Appellants,” the court wrote, “misconstrue Florida’s interest, which is not simply to place children in a permanent home as quickly as possible, but, when placing them, to do so in an optimal home, i.e., one in which there is a heterosexual couple or the potential for one.”

Florida Gov. Jeb Bush, a Republican, praised the decision.

“The decision validates Florida’s ‘conclusion that it is in the best interest of adopted children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored both by a father and a mother,'” he said in a statement.

“As the Court stated in its opinion, when children, for various circumstances, become wards of the state, Florida must act in the place of a parent. Our adoption policies take that important role into account. Our overriding concern is the best interest of the children we seek to place with adoptive families.”

Mathew Staver, president and general counsel of the Florida-based Liberty Counsel, also applauded the ruling. The pro-family group filed a friend-of-the-court brief with the state.

“In this age of judicial activism, it is refreshing to see a court assume its proper role and allow the people to set family policy,” Staver said in a statement. “Common sense and human history underscore the fact that children need a mother and a father. Hopefully this decision will form a basis for other states to follow Florida’s example of preserving family relationships that include a mom and a dad.”

The 11th Circuit covers Alabama, Florida and Georgia. Two of the judges in the case were appointed by the first President Bush, the other by President Carter.

The case is Lofton v. Secretary of the Department of Children and Family Services.

For information on the battle over same-sex “marriage,” visit BP’s story collection at:

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  • Michael Foust