Gay rights setback: Court sidesteps adoption issue

Less than two years after handing down an important decision expanding the rights of gays and lesbians and helping to kindle a national debate over gay marriage, the US Supreme Court has declined to take up a case challenging the State of Florida's ban on adoption by homosexuals.

Instead, the nation's highest court Monday let stand a January 2004 opinion by a federal appeals court in Atlanta that upholds the Florida law.

The announcement marks a setback for gay rights activists who were hopeful that the legal landscape may have shifted in a fundamental way in the wake of the court's 2003 ruling in Lawrence v. Texas. In that decision, it struck down a Texas law that made sodomy a crime for homosexuals but not heterosexuals.

Five months after the Lawrence decision, the Supreme Judicial Court of Massachusetts cited it while ruling that there was a state constitutional right to gay marriage in Massachusetts. Liberals praised that decision as a civil rights landmark. Conservatives - including President Bush - denounced it as judicial activism.

The justices did not explain why they decided not to hear the Florida appeal. But some analysts say the outcome suggests that Justice Anthony Kennedy, a swing vote in gay rights cases, may have been worried about the broader implications of taking up the case.

"It is not only about gays and lesbians as parents, it is about the children," says Barbara Bennett Woodhouse of the Center on Children and Families at the University of Florida in Gainesville. "The impact on waiting children who haven't found adoptive homes is extremely detrimental."

Florida is the only state banning gay adoption, but lawmakers in several others are debating similar measures. Twenty-two states explicitly permit gays and lesbians to adopt.

The Florida case was important, in part, because it would once again have placed the high court at the center of a raging culture war over gay rights.

The Florida ban on homosexual adoption was passed in 1977 amid an antigay campaign waged by former beauty queen Anita Bryant. Several efforts have been mounted to repeal the statute, and three lawsuits have been filed in Florida courts. All have failed.

The most recent suit was filed in a Miami federal court in May 1999 by a group of foster parents who are also homosexuals. Among the plaintiffs was Steven Lofton, a foster parent and registered pediatric nurse who has raised three children from infancy - each having tested HIV-positive at birth. Mr. Lofton seeks to adopt one of those children.

The plaintiffs charge that the Florida law violates their constitutional right to maintain private family relationships and to be treated equally and fairly by the state government.

Florida law entrusts gay and lesbian state residents (among others) to provide safe and loving homes for children as foster parents. But the law bars them from adopting those same children. Florida officials defend the ban by saying that being a foster parent is a temporary situation, while adoption is permanent.

Ultimately at issue was whether the courts were willing to extend the same kind of constitutional protections to foster parents who are homosexuals as exist for other parents and their children. A federal judge and the appeals court declined to do so.

"The State of Florida has made the determination that it is not in the best interests of its displaced children to be adopted by individuals who engage in current, voluntary homosexual activity," the appeals court decision says. "We have found nothing in the Constitution that forbids this policy judgment."

It adds: "The legislature is the proper forum for this debate, and we do not sit as a superlegislature to award by judicial decree what was not achievable by political consensus."

• Linda Feldmann contributed to this report.