Remember Anita Bryant, the Miss America runner-up turned orange juice tout turned anti-gay campaigner? Though she long ago faded from public view, her legacy survives in Florida.
Bryant, who condemned homosexuality as immoral and “against God’s wishes,” is best known for her 1977 campaign to repeal a Miami ordinance banning anti-gay discrimination. Her organization, Save Our Children, claimed that gays — or “known practicing homosexuals,” in her lingo — were converting children to homosexuality. It was thus no surprise that after Bryant succeeded in her self-described crusade against the bias ordinance, she turned her sights on Florida’s adoption laws.
“Since homosexuals cannot reproduce,” Bryant reasoned, “they must recruit and freshen their ranks.” Fanning the flames of anti-gay hysteria, Bryant helped convince the Florida legislature to pass a law that entirely barred gays from adopting children.
Fast forward more than two and a half decades. In the intervening years, Miami finally passed an anti-gay bias ordinance, the U.S. Supreme Court struck down Texas’ ban on gay sodomy, and Anita Bryant slipped into obscurity.
Last week, nonetheless, a federal appellate court upheld Florida’s anti-gay adoption law against a constitutional challenge. While its language was more guarded then Bryant’s ever was, the court relied on the same discriminatory rationale: that gay adoptive parents might create gay adoptive kids.
The case began in 1999, when four gay men who were serving as foster parents or legal guardians filed suit in federal court claiming that Florida’s exclusionary adoption rule was unconstitutional. The lead plaintiff, Steven Lofton, is a registered pediatric nurse who has raised from infancy three children who were born HIV-positive. As the court was later to acknowledge in its opinion, “by all accounts, Lofton’s efforts in caring for these children have been exemplary.”
The district court threw out the suit in 2001, and the men appealed. Their claim got what might have seemed like a decisive boost last summer, when the Supreme Court ruled in the case of Lawrence v. Texas that Texas’ gay sodomy statute was unconstitutional.
One of the factors the Court emphasized, in striking down the Texas law, was the unjust stigma it engendered. By making gay sodomy illegal (or in the Court’s euphemistic language, by “making it a crime for two persons of the same sex to engage in certain intimate sexual conduct”), the law was an “invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”
Much of the Supreme Court’s reasoning presumes that gays and lesbians have the right to be free from discrimination. Yet its ruling is grounded in privacy concerns rather than anti-discrimination protections. Sounding almost apologetic, the Court explained that a decision based on equal protection grounds would have left heterosexual sodomy unprotected. “Were we to hold the statute invalid under the Equal Protection Clause,” the majority opinion noted, “some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.”
Sodomizing heterosexuals no doubt rejoiced, but the Court’s failure to decide the case on equal protection grounds left important questions unsettled. The issue of gay marriage was, of course, foremost among them, at least in the public debate. Yet in other areas, as well, the constitutional footing of rules discriminating against gays remained less than wholly clear.
The federal appellate court ruling last week is one of the first post-Lawrence cases to address such questions. In upholding Florida’s discriminatory adoption law against an equal protection challenge, the court disappointed anyone who expected Lawrence to bring about a sea-change in the courts’ treatment of anti-gay restrictions.
Like Justice Sandra Day O’Connor, who wrote a concurring opinion in Lawrence on equal protection grounds, the appellate court examined whether the anti-gay rule established by the law had any rational basis. But whereas O’Connor, in her opinion, concluded that Texas had no legitimate reason for its discriminatory restrictions, the appellate court found that the Florida legislature might rationally conclude that gays, as a group, are less fit than heterosexuals to raise children.
Nowhere is the court’s opinion is Anita Bryant’s undisguised homophobia on display. Indeed, the opinion’s language is circumspect and its message is carefully modulated. But what it finally asserts, albeit in a cautious, roundabout way, is that gay parents might adversely influence the development of their children’s sexuality. They might, in other words, make their children gay, too.
The court cites no scientific data to support this supposition. Indeed, it never even states categorically that parental sexual orientation has a bearing on that of children. But in concluding that “the influence of environmental factors in forming patterns of sexual behavior” is an empirical issue, not amenable to judicial resolution, the court allows that the mere hypothetical possibility of such parental influence is enough to bar gays and lesbians from eligibility to adopt.
3,400 Florida children now languish in foster care, waiting for a permanent home. But for all of the Eleventh Circuit’s high-minded talk about nurturing families and the “best interests of the child,” the real basis for its damaging ruling was ignorance, bias and homophobia.
Anita Bryant would be proud.
JOANNE MARINER is a human rights lawyer in New York and a columnist for Findlaw, where this essay originally appeared.
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