First published February 4, 2004, in the Chicago Free Press.
Some weeks we win.
The other week, in Florida, we lost.
For months we have been waiting for the courts to overturn Florida's 1977 blanket ban on gays and lesbians adopting children. Florida is the only state to have such a ban - most states put the welfare of children first.
The story was well-publicized, especially after the case was taken up by Rosie O'Donnell. Life partners Steve Lofton, a pediatric nurse, and Roger Croteau were bringing up five foster kids, three with HIV. Lofton quit his job to raise them full-time. Then, one of the kids, Bert, who had been placed with Lofton and Croteau when he was an infant, no longer tested positive for HIV. Which means that under Florida law he became "adoptable" - and so the state sought a new home for him.
Lofton and Croteau want to adopt Bert but they couldn't because of the adoption ban. Interestingly, Florida would have given Lofton legal guardianship, which would have taken Bert out of the foster system but also threatened his Medicaid coverage. In other words, Florida found Lofton to be a satisfactory parent - it just didn't want to give him the same full legal authority or financial help a straight man would get automatically.
So with the ACLU's help Lofton went to court. Hopes were high. Lofton seemed an ideal test case. But even though the court admitted that "by all accounts, Lofton's efforts in caring for these children has been exemplary," the 11th U.S. Circuit Court of Appeals ruled against Lofton and Croteau and other gay men challenging the law.
If the law is to change, legislators need to change it, the court ruled.
That seems unlikely when the state's governor is Jeb Bush, who responded to the ruling by saying he was pleased. "It is in the best interest of adoptive children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored by both a father and a mother," he stated.
But we all know this law - and this court decision - aren't in place in order to protect the interests of adopted children. There are 43,000 children in Florida's foster care system (this number includes children waiting to be adopted, as well as children who may be reunited with their families). The majority of these children are minorities and a significant number are children with special needs, like Bert. That means that many of these are children who won't easily be adopted.
But Florida's primary concern isn't that these children get homes. And it isn't worried about the taxpayers supporting these children. And it isn't troubled over the citizens who will be impacted later, when these children, shuffled from home to home without adequate love or nurturing, enter the prison and welfare systems as adults.
As the State of Florida said in its argument, the state is concerned about only one thing: Retaining the right to legislate its "moral disapproval of homosexuality."
And the court, while noting the U.S. Supreme Court's decision in Lawrence vs. Texas, said, "We conclude that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right."
Therefore, the court reasoned, Florida isn't violating the Constitution's equal protection clause when it says that gays and lesbians are automatically banned from adopting, no matter what their qualifications. Because gays and lesbians don't have a right to do anything except have sex in the privacy of their own bedrooms.
This is not the way we wanted post-Lawrence life to go. Indeed, it is part of the feared backlash against Lawrence.
Other evidence of the backlash has been cropping up slowly across the country. The Democratic presidential contenders have been trying their hardest (and, I think, wisely) not to make gay issues a central part of their campaigns. Support for civil unions and same-sex marriage has been steadily dropping in polls. And also last month the Ohio legislature passed a Defense of Marriage Act that would make the state the 38th to limit marriage to a union between a man and a woman.
This backlash is not only impacting adult gays and lesbians. It is impacting entire families. It is impacting children like Bert, who can be ripped from their homes - or never placed in homes - because the state is terrified about what gay couples might do in their bedrooms.
So yes, we lost last week. And maybe if it were only the gay and lesbian community who lost, it wouldn't be so bad. But Florida's foster care children lost. They are hurt most by this law and this ruling, which we hope the U.S. Supreme Court will overturn.
Until then Florida will remain a state more committed to its backward, pinched view of the world than to its citizens - young and old.