Two months after a group of homosexual foster parents weathered their third defeat in attempting to overturn Florida's gay adoption ban, plaintiffs Wayne Larue Smith and Daniel Skahen say they're setting their sights on the Supreme Court.

In the meantime, their lives are ordinary.

A white picket fence wraps around their Key West home – a metaphor, says Smith, for just how "appallingly normal" their day-to-day life is. Early each morning, their house erupts with the same hustle and bustle most parents experience as they struggle to get their children dressed, fed and in school before the bell rings. Their two boys, ages 6 and 8, are very active. They both play soccer twice a week and enjoy frequent visits to their local YMCA, of which Smith is a board member. On weekends, the family likes to fish, swim and ride bikes.

"Daniel and I knew we wanted to start a family," says Smith, a real estate lawyer for The Smith Law Firm of Key West. "But more than that, we wanted to make a difference in the lives of those who didn't have anyone else. That's why we decided to be foster parents for those children who, because of age, race or special needs, are labeled 'unadoptable' by the Department of Children and Families."

Smith, who has already cared for 22 children, says their foster children fall into the "special needs" category, which is used to describe kids who have health problems or were abused, abandoned or neglected by their birth parents. Smith says his two current foster children came from "horrible" conditions. He won't get specific. "For their protection, I won't divulge the details of their backgrounds, but if you heard their stories, I'd be shocked if you didn't cry," he says. Despite the Smith family's happy and functional facade, they face a tough reality: Their youngest son is in danger of being removed from the only family he's ever known because Smith and Skahen are gay.

According Florida Statute 63.042, section 3, "No person is eligible to adopt if that person is a homosexual." Florida is the only state with a law that categorically bans gays from adopting. But gays are allowed to serve as long-term foster parents for children deemed "unadoptable." In other words a child can be placed in the care of gay parents, often until they are legally adults, if it's unlikely they would be adopted any other way. Smith's 8-year-old has already been placed in permanent long-term foster care with the men. But the 6-year-old boy's status is still undecided, meaning he could be adopted by another family.

"It has never made sense to us how it is that we're qualified to be legal guardians for children abused, abandoned and neglected by their natural, and in most cases, heterosexual parents, that we can be their foster parents, but that we can't be their adoptive parents," says Smith.

More surprising still, says Smith, are the people who were not categorically excluded from legally adopting in Florida: ex-felons, people with histories of violent behavior and ex-substance abusers.

The ban against gay adoption was born in 1977, when orange juice pitchwoman and Southern Baptist Anita Bryant vigorously campaigned to repeal a state ordinance that guaranteed civil rights to people regardless of sexual orientation. Labeling it the "Save Our Children" campaign, Bryant sold the idea that homosexuals are "evil" people who "recruited" and "molested" children.

"If gays are granted rights, next we'll have to give rights to prostitutes and to people who sleep with St. Bernards and to nailbiters," Bryant argued 27 years ago. On July 7, 1977, the state legislature repealed the ordinance by a margin of 69 percent to 31 percent.

Bryant was exultant. "In victory, we shall not be vindictive," she said the following day. "We shall continue to seek help and change for homosexuals, whose sick and sad values belie the word 'gay' which they pathetically use to cover their unhappy lives."

Smith and Skahen aren't the only homosexual foster parents in danger of losing a child. Steven Lofton and his partner Roger Croteau, who are both registered pediatric nurses living in Oregon, could lose their 13-year-old son, Bert, at any time.

In 1988, Lofton was living in Miami and was licensed as a foster parent by Florida's Department of Children and Families (DCF). Shortly thereafter, the men began caring for HIV-positive infants, four of whom were from Florida. Two of the children, Frank and Tracy, joined their family in 1988 when they were both just under 1 year old. Ginger was taken in when she was six months old in 1989. She died of AIDS in 1995 at the age of 6. In 1991, the men began fostering Bert, a 2-month-old HIV-positive infant. Miraculously, Bert seroreverted from the virus, meaning he no longer tests positive for HIV. The family moved to Oregon in 1998 to be closer to Lofton's parents. Yet even though gay adoption is legal in Oregon, Florida's adoption rules followed the family.

Lofton wasn't worried about the possibility of losing Bert when they moved in '98 because three years earlier a Citizen Review Panel Report informed Lofton that Bert was on a "permanent placement plan" with the family.

But for Lofton, Bert's "emotional security" relied on Lofton's ability to adopt him. Lofton said he wanted to adopt Bert so that he could have the same legal parenting rights as any other Florida parent – rights he lacks because he is gay.

So in 1999, Smith, Skahen, Lofton and one other Florida homosexual foster parent, Doug Houghton, joined an ACLU lawsuit with the hopes of overturning the ban. Two years after the lawsuit's inception, James Lawrence King, U.S. District Judge for the Southern District of Florida, granted the DCF's motion for summary judgment upholding the ban.

"Homosexuality has long been disfavored by the law," read the DCF motion for summary judgment. "In fact, disfavor of homosexuality has been 'firmly rooted in Judeo-Christian moral and ethical standards' for millennia. Under the circumstances, it is as least rationally plausible that Florida's adoption law is created to furthering public morality in the context of child rearing."

King ruled that there exists "no fundamental right to adopt" and that the gay plaintiffs never disagreed with the state's contention that "married heterosexual families provide children with a more stable home environment, proper gender identification and less social stigmatization than homosexual homes."

While human rights organizations reeled, some conservative groups in Washington applauded the ruling. Rev. Louis Sheldon, chairman of The Traditional Values Coalition, told CNN, "Homosexuals are attempting to redefine the family and what constitutes marriage. And because they cannot reproduce, they must recruit children into their movement."

Unfortunately for Lofton, the worst news was yet to come. All of Lofton's foster children were categorized as "special needs" children by the DCF because they were neglected or abandoned with HIV. But when Bert no longer tested positive for HIV, his adoption status changed from "unadoptable" to "highly adoptable," despite the fact DCF promised Lofton permanency with Bert in 1995. In July 2001, Lofton received a phone call from a DCF caseworker informing him that DCF was recruiting other adoptive families for Bert.

Lofton was shocked. "I am deeply concerned that DCF will remove Bert from his family. This family is the only one he has ever known," said Lofton in an undated affidavit. "It is unthinkable that DCF would even consider taking him away. I can't even imagine how being separated from his parents and brothers and sister would affect him. I love Bert deeply and want to protect him. But I cannot protect him unless I can adopt him."

The ACLU received yet another blow when they lost their appeal in January 2004 in a unanimous ruling by a three-judge panel. The DCF opposed the appeal, emphasizing that emotional attachment alone does not give right to constitutional protections as a "family."

"Florida has made the determination that it is not in the best interests of its displaced children to be adopted by `homosexuals`," wrote Judge Stanley Birch in the unanimous court decision, "and we found nothing in the Constitution that forbids this policy judgment." Several of the original legislators who voted to pass the ban in 1977 have spoken out in support of the gay plaintiffs, saying they would take back their original votes if they could.

Elaine Bloom is one of those legislators. "We expressed our shame at having been part of the people who voted in 1977. We said we were wrong and we meant it, and we hope that the courts or the legislature will improve the situation as rapidly as possible," she told ABC's Primetime in 2002.

Former Florida Sen. Paul Steinberg and former state Rep. Barry Kutun agreed with Bloom. "I think there's more examples for studies to prove that children are in no way impaired or harmed by being adopted by a gay parent," said Kutun in the Primetime interview. "We did not have that information, or if that information was available, it was not made available to us in 1977."

Steinberg added, "Look at the parents, look at the child, do what is best for the child. This law does not have to remain on the books of the state of Florida."

Despite the support of the former legislators and high-profile gay activists such as Rosie O'Donnell, the gay plaintiffs received another defeat in recent months. By a split vote of 6 to 6, the 11th U.S. Circuit Court of Appeals in Atlanta declined to reconsider the case on July 23. The plaintiffs needed a majority vote from at least seven federal judges for a victory.

Of the six federal judges who supported the plaintiffs, three said they thought the ban was unconstitutional, while the other three said the issue was important enough to be considered for a hearing. Judge Rosemary Barkett wrote a 50-page dissent condemning the Florida law.

"Neither child molesters, drug addicts nor domestic abusers are categorically barred by the statute from serving as adoptive parents. In a very real sense, Florida's adoption statutes treats homosexuals less favorably than even those individuals with characteristics that may pose a threat to the well-being of children."

Federal Judge Stanley Marcus agreed, writing, "I believe there is a serious and substantial question whether Florida can constitutionally declare all homosexuals ineligible to adopt, while at the same time, allowing them to become permanent foster parents, and not categorically barring any other groups such as convicted felons or drug addicts from adopting."

Florida Gov. Jeb Bush applauded the court's decision to uphold the ban. "I am pleased by the ruling of the 11th Circuit Court of Appeals today. 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."

But Smith says he doesn't think Bush's voiced approval was an honest reflection of his beliefs. "I believe Jeb `made that statement` because he is pandering to a constituency that he believes wants him to say that," says Smith, who added, "There is a lack of courage on behalf of the lawmakers to repeal this decision; they fear it will cost them votes."

ACLU attorney Leslie Cooper says they are exploring their options to file a petition for Supreme Court review in the coming months. Meanwhile, according to the DCF, there are currently around 5,000 children in Florida waiting to be adopted.


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