All Happy Families

The looming battle over gay parenting.

Wayne LaRue Smith had never been so happy to be called bitch.

About two months earlier, Smith and his partner, Dan Skahen, had taken in a 3-year-old foster child we'll call Charlie. The boy had emerged from the caseworker's car redolent of stale cigarette smoke, hair matted and tangled, barely able to walk, and, except for the occasional raspy cry, stone silent. "We think," whispered the caseworker, leaning in, "he's retarded."

Week after week, Smith recalls, Charlie refused to say anything. Then one day, as Smith was trying to prevent the boy from climbing around on the furniture, Charlie uttered the first word Smith had heard escape his lips: "Bitch!" Nonplussed at the vocabulary ("He didn't learn that language from us!" Smith says), Smith was nevertheless delighted that the child had said something. His silence broken, Charlie pressed his tiny fists to his hips and added "Asshole!" before scampering away. Within weeks he was speaking in complete--and more polite--sentences.

Charlie wasn't retarded. He had simply withdrawn from a world that until then hadn't given him much reason to be engaged with it. That sort of history, sadly, is shared by many of the children who find their way into the nation's foster care systems, which included half a million kids when the Department of Health and Human Services last counted, with some 126,000 available for adoption. At the end of fiscal year 2003, 30,000 of those children were in Florida, more than in any other state except New York and California, with more than 5,000 available for adoption.

Charlie lucked out with Skahen and Smith. As of last April, Florida could not even account for the whereabouts of more than 500 children nominally in its custody. Every few years, the state's papers dutifully report an especially tragic case of a child rescued from a bad home only to be deposited by the state into some fresh hell. One such child is Yusimil Herrera, who after being moved dozens of times from one foster home to another, homes in which she was beaten and sexually abused, won a famous lawsuit against the state in 1999. (The verdict was later overturned, and Herrera settled her claim.) She now stands accused of murdering her own young daughter.

Charlie was one of 23 foster children Skahen and Smith have taken in since 1999. The two boys they're now looking after have been with them for years, and Smith and Skahen would like to adopt them, to spare them the prospect of who-knows-how-many desultory transitions from foster family to foster family.

But in Florida, thanks to orange juice pitchwoman Anita Bryant's 1977 "Save the Children" campaign, the Department of Children and Families' adoption forms carry a pair of "yes" and "no" check boxes--page 5, part II, section G--below the statements "I am a homosexual" and "I am a bisexual." Check "yes" to either and you're ineligible to adopt. The law, as its sponsor explained shortly after it passed, was meant to alert gays that "we wish you'd go back into the closet."

Thanks to this law, Skahen and Smith can log on to the Department of Children and Families' Web site and find a photograph and description of their older boy, on offer to any nice heterosexual couple who'd like to take him away from his family.

Right now only Florida explicitly prohibits any gay person from adopting, but just six states and the District of Columbia explicitly allow adoptions by homosexuals. In most cases there's no formal policy, and several states either are known for family judges disinclined to grant homosexuals custody or have indirect statutory barriers to gay parenting. Nebraska banned gay foster parenting in 1995. Mississippi and Utah allow only married couples to adopt, a restriction geared in both cases to exclude gay couples. Just under half of U.S. states permit "second-parent adoption," which grants parental rights to both members of an unmarried couple, in at least some jurisdictions. And more restrictions may be on the way.

From a civil libertarian perspective, it's clear enough why the unequal treatment of gay parents is objectionable: The human desire for family isn't exclusive to heterosexuals, and attempts to prevent gays from raising families both stigmatize them and threaten to deprive them of an important component of a full life. But these barriers to adoption should also offend anyone concerned about family values--about ensuring that all children, especially those who have suffered in the past, find loving homes, and that enrolling those kids in school or getting them medical care is a simple, routine procedure, not a legalistic obstacle course. Yet "family values" remains the call to arms of many who support restricted parenting.

Better an Orphanage?

In 2004 the U.S. Supreme Court refused to hear an appeal of a lower court decision upholding Florida's ban on gay adoption. The challenge was brought by the American Civil Liberties Union on behalf of Smith, Skahen, and other gay parents. Among the plaintiffs were Steve Lofton and Roger Croteau, who care for five children born with HIV. Three of the kids have been with the couple since infancy.

"Good," reacted World Editor Marvin Olasky on the Christian news magazine's weblog. "Maybe more states will now pass legislation protecting kids from gay adoption." Mathew D. Staver, head of Liberty Counsel, which filed an amicus brief supporting Florida's policy, agreed. "Children in Florida will be benefited," he opined to the Christian news service AgapePress, "but not only that--I think other states will follow Florida's lead to enact similar laws."

Some lawmakers and judges in other states do indeed share a horror of gay parenthood. In 2003, as he introduced a bill to ban gay foster parenting, Texas legislator Robert Talton (R-Pasadena) told the state's House of Representatives: "If it was me I would rather [leave] kids in orphanages as such--this is where they are now if they're not fostered out. At least they have a chance of learning the proper values." (Texas doesn't actually have orphanages, but you get the point.) Talton pushed a similar bill through his state's House in April, though Talton's language was later stripped from the Senate version of the law. Former Alabama Supreme Court Judge Roy Moore used uncommonly vehement language, but perhaps not uncommon logic, when he wrote in 2000 that a lesbian mother should be denied custody of her three children because homosexuality was "an evil disfavored under the law," and that the state should "use its power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle."

State legislatures are now pushing to erect a variety of legal barriers to gay couples seeking to raise kids. Carrie Evans, state legislative lawyer for the Human Rights Campaign, a gay advocacy group, has tracked state legislation on gay parenting since 2000. "This year has been the worst," says Evans. "Usually we have a few, but I've never seen this many in one year." Just four months into 2005, lawmakers in seven states--Alabama, Arkansas, Indiana, Oregon, Tennessee, Texas, and Virginia--had introduced bills that would restrict the parenting rights of gay couples and individuals. This new assault seems to be the result of several complementary factors:

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