I am very disappointed to report that the Supreme Court has refused the cert petition in Lofton, the case that seeks to overturn the Florida ban on adoption by gay individuals or couples. They will not hear the case, which leaves the appeals court ruling that upheld the law in place. This does not necessarily indicate that the court would not have struck down the law; many considerations go into deciding which cases to hear.
In upholding a Florida law prohibiting gays from adopting children, a lower court had challenged the logic behind the Supreme Court's landmark 2003 opinion striking down sodomy laws, Lawrence v. Texas, and refused to acknowledge its broad protections for gay rights.Court watchers called that lower-court ruling "disrespectful," making it a strong candidate for high-court review. But the justices blinked Monday, leaving the Florida law intact and the lower-court opinion as the final word on the issue.
"This shows the justices clearly want to give gay rights a rest, at least for this term," said David Garrow, a constitutional expert and historian. Garrow said Justice Anthony Kennedy, who wrote the 2003 opinion, and the justices who supported it may have sensed a strong backlash lurking behind the Florida case, which brought gay rights together with children and family issues.
Since adoption is an issue that's typically been left to the states, and Florida is the only state that has a law prohibiting gays from adopting, the risk of a backlash may have outweighed the importance of a new ruling.
"Kennedy could be falling on his sword here, to avoid a fight over this in such a charged context," Garrow said. "It just isn't a fight they're willing to get into right now."
The article notes that this is not unprecedented, and it uses the example of Brown v. Board of Education. For several years after that landmark decision, the court did not take cases that would have extended the reasoning to other public accomodations including public busses and laws against interracial marriage. Eventually, however, those things followed suit. The article also notes that the trend is clearly moving in the right direction, despite this setback:
Greg Wallance, a lawyer who recently completed a 50-state survey of gay adoption laws for the Center for Adoption Studies in New York, said the court's decision held an important tactical lesson for the gay rights movement."Trying to win grand-scale battles and scoring knock-out victories is not going to work," Wallance said, because the backlash from such actions is so strong. "They won't have a Selma, Alabama, or a Brown v. Board of Education like the civil rights movement did, to push things along. They'll have to count on mounting small, strategic wins that involve individuals rather than grand schemes."
Wallance's survey found, for example, that the trend in most states is toward broader recognition of gay rights in adoption and custody disputes, even in areas that are considered conservative.
Six states and the District of Columbia explicitly permit gays to adopt, while only one, Florida, forbids it. The Child Welfare League of America and the American Academy of Pediatrics support gay adoption. In Mississippi, the state Supreme Court recently overturned a custody order that placed too much weight on a father's allegation that a child's mother had a lesbian affair. A Georgia court recently said in custody disputes that the primary consideration must be "the needs of the child rather than the sexual preferences of the parents."
"It's turning, but slowly," Wallance said.
I have no doubt that in 25 years, we will look back on all of this nonsense over gay marriage and gay adoption and wonder what on earth all the fuss was about, just as the vast majority of us now look back on the civil rights struggle and wonder what took so long in the first place, because the discrimination faced by minorities then just seems so obviously wrong to us today. But that time can't come soon enough for me. And unfortunately, it will be too late for the Lofton family.
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