All Happy Families
Sacrificing children in the name of "family values"
"Will you be my daddy?"
Wayne LaRue Smith regarded his young foster son, who had only a short time earlier come to live with Smith and his partner Dan Skahen, from across the dinner table. His first instinct and fervent desire, he says, was to respond: "Of course! I'd love to be your dad." But the hard realities of Florida law required him to maintain a pained silence: A checkbox on the state's adoption form requires prospective parents to declare whether they are homosexual and therefore, under a unique provision of the state's family law statutes, ineligible to adopt.
Smith was "rescued," he says, by his other, younger foster son—one of 23 the pair have cared for at various times. "No, I want you to be my daddy. Or," turning to Skahen, "you can be my daddy." And then, evincing enormous satisfaction at his sudden epiphany: "I know, I'll have two dads."
And, in effect, he will: The state has since awarded permanent guardianship of the younger child, now in first grade, to Smith, a Key West attorney, and Skahen, a real estate broker. While that doesn't give the child all the benefits full adoption would—a guarantee of Social Security survivor benefits should some accident befall his guardians, for example—it provides the kind of stability vital to children in foster care, who have often been removed from homes where they faced abuse or neglect. The couple's older foster child, now eight, is less fortunate: Though he has now spent almost four years with Smith and Skahen, the state continues to seek to place him in a heterosexual home.
The law notwithstanding, Smith says he feels "completely like a parent now; we feel completely like a family." That feeling comes across in his voice, which softens as he recounts how his "water babies" delight in fishing, snorkeling, and generally splashing about, or when he talks about coaching for the boys' soccer league. He exudes an unmistakably paternal pride when he recalls how the younger boy—"sort of a character"—surprised them with a stirring rendition of "God Bless America," which he would later sing at a musical revue at a local theater.
Smith and Skahen joined with other gay couples in an American Civil Liberties Union-backed challenge to the Florida statute in 1996. That challenge met what appears to be the last in a series of defeats last week when the Supreme Court announced that it would not hear an appeal of the 11th Circuit's decision upholding the Florida law. The Smith-Skahen clan may yet remain intact: Older, non-white children are notoriously difficult to place, and Florida has a shortage of willing adoptive families. But the Court's reticence to take up another contentious gay rights case means the couple must endure regular updates from the court on the continuing effort to undo the family ties they've formed.
"Good," wrote World editor Marvin Olasky on the magazine's weblog in the wake of the announcement, "Maybe more states will now pass legislation protecting kids from gay adoption." Mathew D. Staver, head of the religious non-profit firm Liberty Counsel, which filed an amicus brief supporting Florida's policy, agreed, opining that "children in Florida will be benefited, but not only that—I think other states will follow Florida's lead to enact similar laws."
Their model for emulation, Florida, is currently "protecting" quite a few children from gay adoption: Its foster care system holds more children than any state's save California's and New York's. And keeping track of them all is hard work. As 2004 drew to a close, Florida could not account for the whereabouts over 500 children nominally in its custody. Sometimes the protection is of the sort afforded Yusimil Herrera, who after being moved from one foster home to another 20 times, homes in which she was beaten and sexually abused, won a $4.5 million jury verdict against the state. (The verdict was later overturned; Herrera and her sister accepted a much smaller settlement.) Herrera now stands accused of murdering her own young daughter.
Florida's children will continue to be protected from the likes of healthcare professionals Steve Lofton and Roger Croteau, who care for five children born with HIV, three of whom have been with the couple since infancy. The Miami-based Children's Home Society named an annual award for outstanding foster parents after Lofton and Croteau, its first recipients. No matter, according to Florida Christian Coalition director Bill Stephens, who maintains that "courts are doing what's in the best interest of children and keeping them in heterosexual homes." That's not quite right, of course, but they are, at any rate, keeping them in homosexual homes only under constant threat of transfer.
Advocates for gay adoption had hoped that a series of recent Supreme Court decisions favorable to gay rights might provide grounds for lifting that threat. But the 11th circuit held in early 2004 that Lawrence v. Texas, which struck down Texas' sodomy law, had not established a "fundamental" right to sexual liberty, meaning that the discriminatory Florida law would be subject to only weak scrutiny, upheld if any "rational basis" tied it to a legitimate state interest. Even that low bar had been enough to doom Colorado's anti-gay "Amendment 2" in the case of Romer v. Evans. But the 11th Circuit panel found sufficiently rational the notion that, as Liberty Counsel's Staver puts it, "common sense and human history underscore the fact that children need a mother and a father."
Constant repetition has imbued that mantra with a certain intuitively persuasive force, yet it remains signally unsupported by evidence. The American Academy of Pediatrics has concluded, after reviewing the available empirical data, that there are no grounds for supposing that children raised by same-sex couples fare any worse than those whose parents sport different genitals. A brief filed by the Child Welfare League of America, an organization founded in 1920 that now comprises over 1,100 public and private agencies providing child services, came to the same conclusion, as did an Arkansas court, which overturned that state's ban on gay foster parenting. Christina Zawisza, a University of Memphis law professor who represented the children named in the ACLU suit on behalf of Florida's Children First Project, notes that for some children in foster care, a same-sex couple may even be preferable: A victim of sexual abuse at the hands of a father, for example, might be too traumatized to relate well to a father figure and feel safer with two lesbians.
Even on the assumption that a mother-father pair is the ideal, however, Florida's policy is incoherent, even beyond the strange inconsistency in supposing that couples fit to act as foster parents indefinitely are incapable of being good adoptive parents. Florida law allows singles as well as couples to adopt, and a quarter of adoptions statewide are by single parents; the figure in some counties is as high as 40 percent. Those are the children lucky enough to find any adoptive home. When a Florida district court initially dismissed the ACLU challenge, the state was seeking in vain to permanently place some 3,400 children. The figure has since risen to over 5,000. Some of them could doubtless find homes with loving gay parents, but will continue to be shuffled from temporary home to temporary home. This, we are meant to believe, constitutes a victory for "family values."
If this doesn't seem to amount to much of a "rational basis," perhaps it's because the law has its historical basis in orange-juice-pitchwoman-turned-anti-gay-crusader Anita Bryant's 1977 "Save Our Children" campaign. One of the state legislators Bryant persuaded to keep Florida's pool of adoptive parents gayrein hinted at the law's real purpose: to signal to Florida's gays that "we wish you'd go back into the closet."
Martin Luther King Jr. observed, paraphrasing the 19th century theologian Theodore Parker, that while the arc of the moral universe is long, it bends toward justice. For the boys who could be Wayne Smith and Dan Skahen's sons, it bends too slowly.
