Case Study: Homosexuals in Florida Banned from Adopting Lofton v. Secretary of the Department of Children and Family Ser

1. Case Study: Homosexuals in Florida Banned from AdoptingLofton v. Secretary of the Department of Children and Family Services Lindsay Weinberg Margaret Kuklewicz Rachel O’Konis LINDSAYLINDSAY

2. Legislation on Gay Adoption A few states ban gay foster parents Many states assert or imply that LGBT adults cannot be prevented from adopting Three states make it impossible for LGBT adults to adopt Mississippi Utah Florida LINDSAYLINDSAY

3. Anita Bryant Former Miss America runner-up Singer Florida native 1977 campaign to repeal Miami ordinance Save Our Children organization LINDSAY “Freshen their ranks” In 1977 she got the pie in her face during a press conference regarding the legislation If we want to watch “pie in the face” movie: http://www.youtube.com/watch?v=dS91gT3XT_A&feature=relatedLINDSAY “Freshen their ranks” In 1977 she got the pie in her face during a press conference regarding the legislation If we want to watch “pie in the face” movie: http://www.youtube.com/watch?v=dS91gT3XT_A&feature=related

4. Florida’s Statute Statute § 63.042 Prohibits those who engage in homosexual activities from adopting Does not categorically prohibit other “groups” of people Substance abusers are not prohibited Child abusers are not prohibited LINDSAY AFTER THIS SLIDE, SHOW CLIP 1 AND CLIP 2LINDSAY AFTER THIS SLIDE, SHOW CLIP 1 AND CLIP 2

5. Steven Lofton and Roger Croteau Pediatric AIDs nurses Lofton was licensed foster parent 1991, Lofton picked up “John Doe” from hospital John “reversed” to become HIV-negative 1994, agency asked if they wanted to adopt him 1998, given “Outstanding Foster Parent of the Year” award LINDSAY AFTER THIS SLIDE, SHOW CLIP 3LINDSAY AFTER THIS SLIDE, SHOW CLIP 3

6. Steven Lofton and Roger Croteau Eventually adopted five other children Five have HIV One passed away “John Doe,” or Bert, is still HIV-free Moved to Oregon Florida threatened to take away health coverage Oregon asked family to take HIV-positive twins LINDSAY/RACHEL LINDSAY/RACHEL

7. Steven Lofton and Roger Croteau Rosie O’Donnell comes out She campaigns for Lofton Sends family on LGBT parent cruise Media coverage Extensive in Florida Ended after case was decided LINDSAY/RACHELLINDSAY/RACHEL

8. Bill Duncan for Florida Legislature Worked with the Marriage Law Project Wanted to defend this as a legislative decision Felt that a law similar to Utah’s would be better Believed in strongly distinguishing between foster care and adoption LINDSAY LINDSAY

9. Florida Foster Care/Adoption Stats 25% of adoptions out of foster care are to single adults 3,400 children waiting to be adopted 79% of children in foster care for more than 2 years 54% for more than 3 years 36% for more than 4 years LINDSAY LINDSAY

10. Lofton Case in District Court Lofton and five other plaintiffs Represented by the ACLU Sued Secretary of Department of Children and Family Services Court denied request for class certification Then granted summary judgment for the state RACHELRACHEL

11. Lofton Case in Court of Appeals The nature of adoption Adoption is not a right, it is a statutory privilege Adoption comes from state law and contracts The nature of the application process By applying to adopt, one is asking to have his/her life scrutinized Adoption is a public act RACHEL Opinion published January 28, 2004 Three arguments why Statute § 63.042 is unconstitutional Due Process Clause of Fourteenth Amendment Lawrence v. Texas Equal Protection Clause of Fourteenth Amendment RACHEL Opinion published January 28, 2004 Three arguments why Statute § 63.042 is unconstitutional Due Process Clause of Fourteenth Amendment Lawrence v. Texas Equal Protection Clause of Fourteenth Amendment

12. Lofton Case in Court of Appeals Plaintiffs’ Due Process argument Constitutionally protected relationship that Florida refuses to recognize Foster parents entitled to a “constitutional liberty interest” because of the loving bond that exists Foster parents should be protected if state created an “expectation of family permanency” Court’s response Foster parent rights cannot be compared to biological parent rights Failed to state a claim RACHEL Opinion published January 28, 2004 Three arguments why Statute § 63.042 is unconstitutional Due Process Clause of Fourteenth Amendment Lawrence v. Texas Equal Protection Clause of Fourteenth Amendment RACHEL Opinion published January 28, 2004 Three arguments why Statute § 63.042 is unconstitutional Due Process Clause of Fourteenth Amendment Lawrence v. Texas Equal Protection Clause of Fourteenth Amendment

13. Lofton Case in Court of Appeals Plaintiffs’ Lawrence argument Lawrence identified a right to “private sexual intimacy” Florida statute burdens that right Court’s response Lawrence says that state cannot criminally prohibit private consensual homosexual conduct But these rights are not a fundamental liberty interest Lawrence explicitly says that it does not have to do with minors RACHEL RACHEL

14. Lofton Case in Court of Appeals Plaintiffs’ equal protection argument Statute denies equal protection of laws because it categorically denies homosexuals ability to adopt Court’s response Equal protection does not forbid legislative classification related to a “legitimate state interest” Legitimate state interest is furthering the best interests of adopted children RACHEL RACHEL

15. Lofton Case in Court of Appeals According to Court, what is in the best interest of children Homes that resemble the nuclear family Provide stability Provide male/female authority figures Proper development and socialization Provide “heterosexual role-modeling” RACHEL RACHEL

16. Lofton Case in Court of Appeals Court said legislature could “…rationally act on the theory that heterosexual singles, even if they never marry, are better positioned than homosexual individuals to provide adopted children with education and guidance relative to their sexual development...” Court called theory an “unprovable assumption” But legislature can legitimately use it as basis for the statute RACHEL RACHEL

17. Lawrence v. Texas About Texas statute that made it a crime for “two persons of the same sex to engage in certain intimate sexual conduct” Lawrence Court in favor of “liberty for all” History of homosexual “category” Rejects idea that court maintains traditional morals and values Lofton Court distinguishes Lawrence Lawrence deals with criminal prohibition and adults RACHEL Does this freedom of “intimate conduct” make it unconstitutional for a state to forbid a homosexual person from adopting a child? Lofton, which was decided six months after the Supreme Court handed down the decision in Lawrence, begs that very question. In fact, the Lofton court pulled a sentence from Lawrence in order to bolster its claim. That sentence reads that “The present case does not involve minors.” However, the Lofton court does not discuss the next sentence in Lawrence, which says that “It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Id. From reading both sentences, it seems that the Supreme Court is saying that Lawrence has nothing to do with sexual relations with minors – as, obviously, Lofton has nothing to do with either – but, instead, has to do with the private sexual lives of consenting adults. In Lawrence, the Supreme Court builds an argument in favor of the legal tradition of liberty for all. See id. The Court said that the concept of a homosexual “as a distinct category of person” did not arise in our culture until the late 19th century. Id. at 568. The discrimination and prohibition of homosexual behavior followed around 1970. Id. at 570. Similarly, the Supreme Court rejects the notion that a court must maintain traditional morals and values. The Lawrence court said that its job is to “define the liberty of all, not to mandate our own moral code.” RACHEL Does this freedom of “intimate conduct” make it unconstitutional for a state to forbid a homosexual person from adopting a child? Lofton, which was decided six months after the Supreme Court handed down the decision in Lawrence, begs that very question. In fact, the Lofton court pulled a sentence from Lawrence in order to bolster its claim. That sentence reads that “The present case does not involve minors.” However, the Lofton court does not discuss the next sentence in Lawrence, which says that “It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Id. From reading both sentences, it seems that the Supreme Court is saying that Lawrence has nothing to do with sexual relations with minors – as, obviously, Lofton has nothing to do with either – but, instead, has to do with the private sexual lives of consenting adults. In Lawrence, the Supreme Court builds an argument in favor of the legal tradition of liberty for all. See id. The Court said that the concept of a homosexual “as a distinct category of person” did not arise in our culture until the late 19th century. Id. at 568. The discrimination and prohibition of homosexual behavior followed around 1970. Id. at 570. Similarly, the Supreme Court rejects the notion that a court must maintain traditional morals and values. The Lawrence court said that its job is to “define the liberty of all, not to mandate our own moral code.”

18. Romer v. Evans About Colorado amendment that repealed anti-discrimination laws regarding sexual orientation Romer Court in favor of “liberty for all” Amendment “imposes a special disability upon those persons alone” Was classification legitimate or “born of animosity”? Lofton Court distinguishes Romer Romer policy did not have a legitimate state interest RACHEL Justice Kennedy, author of the Lawrence opinion, also wrote the Supreme Court opinion for Romer v. Evans. Justice Kennedy used the same type of sentiment in Romer – one of “liberty for all” – as he did in Lawrence. The Romer Court said that the Colorado amendment is a “status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake.” This distinction in the two opinions may be where the subjective quality of the Court comes in. Are the two supposed “state interests” similar enough that the Supreme Court would rule Florida’s interest irrational? This issue could be the turning point in later litigation efforts.RACHEL Justice Kennedy, author of the Lawrence opinion, also wrote the Supreme Court opinion for Romer v. Evans. Justice Kennedy used the same type of sentiment in Romer – one of “liberty for all” – as he did in Lawrence. The Romer Court said that the Colorado amendment is a “status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake.” This distinction in the two opinions may be where the subjective quality of the Court comes in. Are the two supposed “state interests” similar enough that the Supreme Court would rule Florida’s interest irrational? This issue could be the turning point in later litigation efforts.

19. Barkett’s Dissent Violation of equal protection and due process Every other “questionable” group can adopt Other laws targeting politically unpopular groups had been struck down by Supreme Court MARGARETMARGARET

20. Rehearing Denied by Eleventh Circuit MARGARET Rehearing denied by Eleventh Circuit By a 6-6 vote Needed a majority Why didn’t they get one? Prior not the only one appointed by a conservative! Votes against Lofton: Chief Judge J.L. Edmonson – appointed by Reagan Stanley F. Birch – appointed by George Bush Susan H. Black – appointed by George Bush Edward E. Carnes – appointed by George Bush Frank M. Hull – appointed by Clinton Votes for Lofton, to rehear the case: Gerald B. Tjoflat – appointed by Ford R. Lanier Anderson III – appointed by Carter Joel F. Dubina – appointed by Bush Rosemary Barkett – appointed by Clinton Stanley Marcus – appointed by Clinton Charles R. Wilson – appointed by Clinton MARGARET Rehearing denied by Eleventh Circuit By a 6-6 vote Needed a majority Why didn’t they get one? Prior not the only one appointed by a conservative! Votes against Lofton: Chief Judge J.L. Edmonson – appointed by Reagan Stanley F. Birch – appointed by George Bush Susan H. Black – appointed by George Bush Edward E. Carnes – appointed by George Bush Frank M. Hull – appointed by Clinton Votes for Lofton, to rehear the case: Gerald B. Tjoflat – appointed by Ford R. Lanier Anderson III – appointed by Carter Joel F. Dubina – appointed by Bush Rosemary Barkett – appointed by Clinton Stanley Marcus – appointed by Clinton Charles R. Wilson – appointed by Clinton

21. William H. Pryor, Jr. Appointed just 5 months earlier By George W. Bush Recess appointment Former Alabama attorney general His track record Defended statutes criminalizing homosexual sodomy Spoke out against decisions legalizing abortion Won cases trimming congressional power over the states He provided key vote MARGARET MARGARET

22. Supreme Court Refuses to Hear Case Court usually grants review when there is a split among federal circuits Possible explanations Lawrence was only 18 months old Did lower courts need more time? Court’s membership was unsure Passions still high from Massachusetts’ same-sex marriage vote Court didn’t want to get involved Court could have used Lofton to elaborate on Lawrence MARGARET MARGARET

23. Florida Court Decides Similar Case September 8, 2008 Monroe Circuit Court Judge David J. Audlin, Jr. Holds ban unconstitutional Similar circumstances to Lofton Opinion states that Ban is irrational and scientifically inexplicable Ban punishes gay Floridians But attorney general can now appeal order MARGARET The case presented to Audlin involved similar circumstances to those in Lofton; the Department of Children and Families placed a five-year-old boy with learning disabilities and special needs with a foster father in 2001, and they have been together ever since. Id. The foster father became the boy’s guardian in 2006, but wanted to adopt the boy with his partner of 15 years. Id. Florida law banned him from this decision. Id. In his opinion, Audlin wrote, “contrary to every child welfare principle, the gay adoption ban operates as a conclusive or irrebuttable presumption that… it is never in the best interest of any adoptee to be adopted by a homosexual.” Id. The rest of Audlin’s opinion tore into the Eleventh Circuit’s decision in Lofton. An adoption expert testified that the ban was “irrational and scientifically inexplicable,” and presented research on adoption by gay and lesbian parents — research that directly refuted the information relied upon by the Eleventh Circuit in the Lofton decision. MARGARET The case presented to Audlin involved similar circumstances to those in Lofton; the Department of Children and Families placed a five-year-old boy with learning disabilities and special needs with a foster father in 2001, and they have been together ever since. Id. The foster father became the boy’s guardian in 2006, but wanted to adopt the boy with his partner of 15 years. Id. Florida law banned him from this decision. Id. In his opinion, Audlin wrote, “contrary to every child welfare principle, the gay adoption ban operates as a conclusive or irrebuttable presumption that… it is never in the best interest of any adoptee to be adopted by a homosexual.” Id. The rest of Audlin’s opinion tore into the Eleventh Circuit’s decision in Lofton. An adoption expert testified that the ban was “irrational and scientifically inexplicable,” and presented research on adoption by gay and lesbian parents — research that directly refuted the information relied upon by the Eleventh Circuit in the Lofton decision.

24. Now – Adoption/Foster Care by LGBT 65,000 adopted children are with LGBT parents 14,000 foster children live with LGBT parents Does it have negative effects? LGBT parents Are older Are more educated Have more economic resources Are not deficient in parenting knowledge, skills, or behavior Children do not experience adjustment problems Children are not at risk for problems with gender identity MARGARET 65,000 adopted children are with LGBT parents Over 4% of all adopted children 14,000 foster children live with LGBT parents Over 3% of all foster care children MARGARET 65,000 adopted children are with LGBT parents Over 4% of all adopted children 14,000 foster children live with LGBT parents Over 3% of all foster care children

25. Same-Sex Marriage DOMA – Defense of Marriage Act State Law Three states recognize same-sex marriage 26 explicitly ban same-sex marriage Around the World Recognized in several countries Others will recognize same-sex marriage conduct abroad (including NM, NY and RI) Margaret DOMA – Defense of Marriage Act Passed in 1996 Marriage is explicitly defined a union of one man and one woman for the purposes of federal law No act or agency of the federal government currently recognizes same-sex marriage According to the Government Accountability Office, more that 1,138 rights and protections are conferred to US citizens upon marriage Social Security benefits Veterans’ benefits Health insurance Medicaid Hospital visitation Estate taxes Retirement savings Pensions Family leave State Law States Recognizing Same-Sex Marriage: Massachusetts since May 17, 2004 California since May 15, 2008 Connecticut since October 10, 2008 4 states provide nearly all the state-recognized rights either through civil unions or domestic partnerships 26 states have constitutional amendments explicitly barring the recognition of same-sex marriage 43 states have statutes restricting marriage to two persons of the opposite sex Around the World Recognized in the Netherlands, Belgium, Spain, Canada, South Africa, and Norway Same-sex marriage conducted abroad is recognized in Israel, France, Aruba, Netherlands Antilles and in New Mexico, NY and Rhode Island Margaret DOMA – Defense of Marriage Act Passed in 1996 Marriage is explicitly defined a union of one man and one woman for the purposes of federal law No act or agency of the federal government currently recognizes same-sex marriage According to the Government Accountability Office, more that 1,138 rights and protections are conferred to US citizens upon marriage Social Security benefits Veterans’ benefits Health insurance Medicaid Hospital visitation Estate taxes Retirement savings Pensions Family leave State Law States Recognizing Same-Sex Marriage: Massachusetts since May 17, 2004 California since May 15, 2008 Connecticut since October 10, 2008 4 states provide nearly all the state-recognized rights either through civil unions or domestic partnerships 26 states have constitutional amendments explicitly barring the recognition of same-sex marriage 43 states have statutes restricting marriage to two persons of the opposite sex Around the World Recognized in the Netherlands, Belgium, Spain, Canada, South Africa, and Norway Same-sex marriage conducted abroad is recognized in Israel, France, Aruba, Netherlands Antilles and in New Mexico, NY and Rhode Island

26. The 2008 Ballot Initiatives Florida: Amendment 2 California: Proposition 8 Arizona: Proposition 102 Arkansas: The Unmarried Couple Adoption Ban Amendment 2 in Florida states: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.” Proposition 8 in California eliminates the right of same-sex couples to marry Proposition 102 in Arizona will amend the AZ Constitution to define marriage as between one man and one woman Arkansas: The Unmarried Couple Adoption Ban is a citizen-initiated state statute that would make it illegal for any individual cohabiting outside of a valid marriage to adopt or provide foster care to minors.[1] While the measure was proposed primarily to prohibit same-sex couples from being adoptive or foster parents, this measure would apply to all otherwise qualified couples who are not legally married. Amendment 2 in Florida states: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.” Proposition 8 in California eliminates the right of same-sex couples to marry Proposition 102 in Arizona will amend the AZ Constitution to define marriage as between one man and one woman Arkansas: The Unmarried Couple Adoption Ban is a citizen-initiated state statute that would make it illegal for any individual cohabiting outside of a valid marriage to adopt or provide foster care to minors.[1] While the measure was proposed primarily to prohibit same-sex couples from being adoptive or foster parents, this measure would apply to all otherwise qualified couples who are not legally married.

27. Now – Economic Environment Foster care costs the state Monitoring of children Providing health insurance and other care Constantly recruiting parents Displaced or children who were never placed have extra challenges Health, educational, financial, others States save money by allowing adoption! MARGARET If a state limited adoption and foster care by LGBT parents 9,300-14,000 children would be displaced Children would have to wait longer to be adopted In Florida, during 2004-05, 4,362 children had been waiting for more than 2 years Children would “age-out” MARGARET If a state limited adoption and foster care by LGBT parents 9,300-14,000 children would be displaced Children would have to wait longer to be adopted In Florida, during 2004-05, 4,362 children had been waiting for more than 2 years Children would “age-out”

28. Now – Political Environment Obama/Biden viewpoint McCain/Palin viewpoint Future judge appointees State referendum California vote on LGBT marriage Ellen DeGeneres ads LINDSAYLINDSAY