Knowing the Body

2004 Final Web Report

On Serendip

Introduction
The line between public and private is quickly diminishing, if there ever was a line to start. Private ideologies (social and moral/ethical attitudes) have been made public by what legislation does (not) relegate, and then protects the right to privacy for the individuals who abide by these private ideologies. The intrinsic protection of adherents to a dominant ideology forces those with deviant ideology to actively make their private concerns public in order to be granted their "right to privacy." However, even after this guarantee it is not possible for the private to leave the public sphere until the dominant ideology changes radically to incorporate these rights at the same intrinsic level of the original ideology- meaning the right to privacy has to be constantly reiterated until the societal backing makes it dominant. In the case of human and civil rights, legislation has the obligation to intercede on behalf of those disenfranchised by laws, regardless of the impact of or on social attitudes. Once the issue of gay adoption entered the public sphere (i.e. when gay couples were first singled out by the state as ineligible), the only possible way to ensure that these individuals rights would be protected and that one day the rights of all homosexual individuals and couples to adopt would be guaranteed was for the issue to come before the Supreme Court. It is fortunate that the law was not overturned in a lower court, because the decision would not carry the weight of one handed down by the Supreme Court.

Florida State Adoption Logo (7).

Florida state law currently bans lesbians and gay men from adopting children, preferring rigorously gendered family construction, as is made perfectly clear by it's logo. The American Civil Liberties Union (ACLU) is attempting to get a case before the Supreme Court that could overturn the law. The ban on gay adoption has been in place since 1977, when the state legislature almost unanimously condoned restriction of the rights of its gay citizens. The lines of public and private are particularly blurred when it comes to adoption. Adoption is a completely public process; there is no privacy for the couple or individual involved as they are scrutinized by the state, whether they be homosexual or not. The state is justified in violating a person's right to privacy in the best interest of the child or children they may adopt. At the time of the Florida law's inception, Senator Curtis Peterson, one of its primary supporters, spoke to the law's purpose: "The problem in Florida has been that homosexuals are surfacing to such an extent that they're beginning to aggravate the ordinary folks. We're trying to send them a message, telling them: 'We're really tired of you. We wish you'd go back into the closet" (2).
History of Florida State Adoption Law
Legislation on the issue was sparked by Anita Bryant's "Save Our Children" campaign, which raged through Florida and the nation spreading myths about homosexuality and linking homosexuality to pedophilia. In 1977, Anita Bryant was a popular singer and a spokesperson for Florida Orange Juice. Her campaign against homosexuals played on latent fears and misconceptions about homosexuality and triggered a wide-spread response across the nation from groups that would come to be known as the religious right. She objected to homosexuality as being morally wrong because it showed children that there were alternative lifestyles from the heteronormative nuclear family. Her campaign drew support from religious leaders like Jerry Falwell, who traveled to Miami to meet with Bryant, and ultimately set the stage for what has become a battle between gay rights activists and the religious right.

Since 1977, the state of Florida's legislative attitude has become more equally divided on the issue, but has not changed significantly enough to overturn the law. An appeal was made to a three-person appeals panel, which upheld the law. A request for reconsideration of the decision made to the federal Court of Appeals for the 11th Circuit, which encompasses the geographic area of Florida, Georgia and Mississippi, was denied because the court was evenly divided 6-6. After the trial, many of the judges involved spoke out on a personal note against the law. One judge called on Florida legislators to change the law on the basis that it violates the equal protection clause of the constitution; Judge Rosemary Barkett took the opportunity to berate the state on its hypocritical adoption policies, namely that the state does not bar anyone, including child abusers and molesters, the right to adopt, except gays and lesbians. Another judge, Stanley F. Birch Jr., was quoted as saying: "I consider the policy decision of the Florida legislature to be misguided and trust that over time attitudes will change and it will see the best interests of these children in a different light" (8).Birch fingers the necessity of changing attitudes to changing policy. Without a public outcry, the legislature is not likely to change. Public cases, then, are essential to guaranteeing private rights- placing this issue on the national stage brings public consciousness to bear and sets the stage for allowing legislation to effect larger societal attitudes about private rights.

Although there is strong personal dissent from the decision not to grant the appeal, this denial has allowed the ACLU to bring the case before the Supreme Court for consideration. The Supreme Court is the most public of forums for a discussion of private rights. Decisions of the Court become nation-wide precedents and are causally much more expedient for dispensing rights to individuals and groups. Until that time, there is some comfort in loopholes in the system that allows gay individuals and couples to adopt.

Working the System: Loopholes in the Florida Adoption Policy
On one of the forms required for the adoption process, the candidate is asked to check one of two boxes, stating that they are or are not homosexual. This method of "screening" applicants for their eligibility is rarely challenged. "'We don't go around trying to figure out if they're gay...we don't do that'" (1). says Chris Card, the executive director of one of Florida's private, community-based adoption and foster care agencies. Although there is no way of studying or estimating the number of homosexual individuals or couples who have successfully adopted, most agencies are upfront about there disinclination to actively pursue this information. The availability of this loophole for manipulation would seem to indicate a growing sympathy with the plight of these couples amongst child workers in the state.

In Florida, some same-sex couples have separated for the duration of the adoption process, only resuming their relationships once one partner has legal custody of the child. One man, Jonathan, just gained custody of a boy who was a foster child in his care. By lying on the adoption form and checking the "no" box under the statement, "I am a homosexual," Jonathan effectively slipped through the loophole in the law and hopes to one day use this deception in a positive light by being an exemplary adoptive parent. He is also grateful to the case workers who, he is certain, knew that he was homosexual but managed never to allow it to become an issue in deciding his case.

Florida Foster Care System
Perhaps most indicative of the law's blatantly homophobic basis is the fact that the state has no restrictions on using gays and lesbians to relieve the burden on the foster care system. The state, by not placing children with HIV/AIDS on their lists of adoptable children and refusing to address this reality relegates them almost irrevocably to foster care. The Florida state foster care system is literally overwhelmed with children. Homosexual couples and individuals who do not wish to lie about their sexuality in order to adopt are placed in a compromising position- taking in special needs children, especially those who are terminally ill and not available for adoption at all, both decreases the likelihood that the child will be removed from the home, and increases the likelihood that they will be welcome foster parents. The state, I would argue, knowingly takes advantage of this but refuses to recognize that people as capable and committed to children as those who willingly take on challenging cases more than qualifies them to be adoptive parents. Blatant segregation within the foster care system only underscores the homophobic nature of the ban on gay adoption. Using the state's gay and lesbian couples, Florida can effectively segregate the "normal," "adoptable" children from the "damaged" children by placing them in a closet, along with the "deviant" homosexual citizens who want to adopt. The system capitalizes on the powerless position of gay and lesbian couples who want to have children and has frankly disgusting latent implications that HIV and AIDS are "gay" diseases- making the children suitable for gay couples.

The ACLU case involves three families: two of which are currently providing foster homes for Florida's children. One of these families in particular has become a rallying cry for those interested in the case.

The Croteau-Lofton Case

Steve Lofton and Roger Croteau started their experience with the Florida foster care system almost fifteen years ago. The first of their six foster kids were Frank and Tracy, placed with the two men within a month of each other when both were infants. Ginger, the third, was placed with them soon after, and Bert arrived when Frank and Tracy were four. In 1995, at age six, Ginger died of complications from AIDS, the disease which prompted the state to place her with Steve and Roger initially. It would be rare to find the families so willing to take on one child requiring such extensive medical attention, let alone the six HIV-positive children this couple has devoted their lives to.
Bert, now ten, was also HIV positive when he was initially placed with Steve and Roger. However, his course of treatment has been successful enough to make the virus undetectable- a huge testament to Roger and Steve's care. Unfortunately, since the current ban on gay adoption does not allow the men to adopt Bert, the state is actively looking for a family to place him with. So long as the HIV tests came back positive, the state would not place Bert with a family- he was only suitable for foster care with the disease. The intolerable cruelty of the system is never more evident than in this case: two men commit their lives to these children, Steve even leaving his job at the state's request, and pay the price for their good care of a sick child by making him "adoptable" in the eyes of the state.

Bert has become the central focus of the Lofton Case. Frank and Tracy are fourteen, the age at which children are no longer considered actively "adoptable" and the two youngest children in the family are from Oregon, where the Croteau-Lofton family moved to be closer to Steve's parents in Portland. The family's pediatrician noted what good parents these two men were and recommended them to a case worker. When the state approached Steve and Roger with Wayne and Ernie, both HIV positive, the family welcomed them with open arms. Although the family is large, it is thriving, but the threat of losing Bert is constant.

The Lofton-Croteau Family: (6).

Oregon, where the family is now living, has received mixed ratings from the Human Rights Campaign on gay adoption.4 The HRC determines its overall adoption score by considering three different kinds of adoption: gay individuals, gay couples and second-partner adoptions (for example, in cases of divorce). Oregon does not have a good record for adoptions to gay couples, but has a good record for gay individuals and a mixed one for second-parent adoption. Individual adoptions, however promising they may look for the future of gay adoption on paper, do not mean that the state is supporting gay rights, merely that it is more difficult to determine the sexuality of a potential parent without a partner present. Unless the state specifically questions the parent's sexuality, like in Florida, gay and lesbian individuals are being held to the same standards and heterosexual individuals- and being granted the right to adopt just as frequently. This very fact should actually guarantee that gay adoption is legalized. However, the ACLU is not using evidence of competency found in the cases those who have ducked the system in the current case against Florida. Although the ACLU has not addressed the logic behind this decision, the most likely reason is that the legal transgression would be used to keep the evidence out of court or to paint the clients in a negative light. It is also possible that bringing such attention to the loophole could close it, cutting off the possibility of adoption for a very long time if the Supreme Court sides with Florida.

Supreme Court History: Gay Rights v. State Rights

The Supreme Court's history when dealing with unconstitutional state laws is promising for the ACLU. The Court has consistently upheld the principle that state law cannot disenfranchise a specific group or be used to express disapproval of lifestyle choices of its citizens. The ACLU will present two cases, Romer v. Evans and Lawrence v. Texas, to remind the Court of this fact. Both of these cases deal specifically with laws that targeted gays and lesbians. Romer v. Evans was a case from Colorado which dealt with sexual orientation discrimination in many forms. The Colorado state legislature passed the amendment, which repealed legislation already in place designed to prevent discrimination against homosexuals, in 1992. The state insisted that it was to preclude homosexuals from preferential treatment, but the Court upheld the original statues as necessary; and declared the amendment a violation of the Equal Protection Clause in the constitution:
Amendment 2...nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment
...
Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government(10).
The state was ordered to repeal the amendment and cautioned not to attempt to use legislation to vindicate private feelings towards groups of its citizens. The decision came in May of 1996.

In June of 2003, Lawrence v. Texas made a huge stride forward for gay rights. The Supreme Court's decision in this case declared sodomy laws, which proclaimed private, consensual, sexual acts between individuals of the same and, in some states opposite, sex punishable under law. As in Romer v. Evans, this was considered systematic disenfranchisement of the rights of a specific group of citizens, and was therefore unconstitutional. A Supreme Court decision is the strongest playing card for broad-scale change in the nation. Because of Lawrence v. Texas, sodomy laws in the U.S. have been struck down. The Supreme Court was given the power to establish the presence of a "private" in the lives of American and it did so.

ACLU Legal Strategy
The ACLU will use this idea of the private sphere in its case against the Florida ban on gay adoption. Same-sex people are being blatantly barred from enjoying the same rights as their heterosexual counterparts. As in previous decisions, this is a case of using legislation to maliciously restrict the rights of citizens whose lifestyle choices do not fit within the ideology of the administration. Adoption complicates the public/private distinction much more than the other cases have, however. Factoring the well-being of children into the equation changes the matter because of the state's obligation to provide for these children. A fertile heterosexual couple may chose to have a child, may chose to participate in sexual acts that will lead to pregnancy. The decision is entirely private, entirely shared between the two people involved, and their right to make that decision in privacy is absolutely guaranteed by law and nature. A homosexual couple does not have this option. An infertile heterosexual couple does not have this option, neither does an individual. Each of these situations necessitates involvement by a third party: medical technology to increase fertility; legal and guardianship issues; and adoption and foster care all force the private into the public. There is no possible way to avoid this. In fact, now that this is recognized, the best (only) way to guarantee adoption rights for gays and lesbians in the future is to have a Supreme Court ruling setting a precedent.

Even as the moral tone of society in a particular time and place creates legislation, it is impartial deference to the facts of a case which change that legislation, and so feed the larger societal view of an issue. Political rhetoric plays to the emotions of an audience, but the legislation must reflect facts- and the facts in this case favor the ACLU and the rights of gays and lesbians. Instead of speaking within the homophobic framework of the original law, the ACLU will employ a combination of personal testimony (emotion rhetoric) and psychological testimony (clinical rhetoric).

A number of major psychological studies on varying aspects of parenting have been conducted to determine whether being raised by same-sex parents disadvantages children. "No study has found any evidence to support the claim that lesbians and gay men are unfit to be parents" (2). Each of the studies, seven in all, approached the issue in a slightly different way. The long-term psychological health of children raised by same-sex parents was found to be no different than those raised by heterosexual parents. A small number of studies were exclusively devoted to studying self-esteem, and also found no variation between the results in these two groups. Peer relationships are also unaffected, sexual orientation of the children is unaffected by sexual orientation of the parents, and parenting skills among gay men and lesbians are found to be as good as, and sometimes better than, heterosexual parents.

Major questions need to be asked of these studies: how exactly are test subjects chosen, and how is something like quality of parenting skills measured? The seven studies were conducted under vastly differing conditions. For example, the study concerned with mental and emotional health of the children involved only couples who had gone through insemination- both the homosexual couples and the heterosexual couples. In this instance, the possibility of unwanted pregnancy was eliminated; but other studies did not mention consideration of this factor when finding test subjects. Accidental pregnancies, which cause psychological strain on any family, could be argued as a potential negative influence by a person wanted to discount the studies. Also, many of the studies are comparisons of lesbian motherhood and heterosexual motherhood, whereas only one involved a comparison study of gay fathers and heterosexual fathers. It is unclear without going more in-depth into the studies whether adoption makes a different or larger psychological impact on children than insemination. It is certainly true in any case, however, that a child of a same-sex couple could not be raised with the belief that they were created in the "traditional" way, as is possible when heterosexual couples choose not to tell children that they were adopted. Having same-sex parents places the child in a position of recognizing the public nature of their legal and biological relationship to their parents. In one of these studies involving a comparison of single lesbian mothers and divorced heterosexual mothers- all of whom had children with their ex-husbands- calls into question the compatibility of these two groups because the study rests on the assumption that the added trauma of being "outed" during the divorce process would not affect the overall health of the mother or the child. It is a large assumption to make, and one which was not sufficiently addressed to seriously validate the study.

When examining these psychological studies, the biggest fall for the ACLU will be the lack of any long-term studies on adopted children of same-sex parents. However, the lack is a symptom of the inequality within the system. The studies which are being used serve to counter homophobic myths propounded by anti-gay factions suggesting that pedophilia and mental illness are overtly linked to homosexuality.

Conclusion

The Supreme Court, because of its visibility in the nation and the world, is held to the highest possible standard of impartial decision-making. The authority given to and recognized in the Court is answerable only to itself and must therefore not be undertaken lightly; whatever the decision, it will shape the framework in which we discuss the issue of gay adoption. Public legislation of the private sphere is vital to the protection of the rights of marginalized groups in America; decisions by the Supreme Court such as the striking down of sodomy laws are important steps in equalizing the private sphere for all citizens. The legal system in our country is constantly striving to create and protect a private sphere, but bringing that sphere into public discourse is recreating it as public instead of private. However, once legislation is established and a precedent is in place, the process of societal acceptance, which leads to the fundamental privacy of the heteronormative culture, can begin. The president's position, as directly involved in the appointment of Justices, must be recognized for the fearful power it entails- it is the ability to embody political rhetoric within a judicial structure. Rhetoric itself may and does sway public opinion, but its embodiment is the ability to set precedents which may be applied in broad-sweeping generalities, rather than the specifics of a single law.

Working at the intersections of public and private in the lives of its citizens, legislation strives to locate the boundaries of the individual in the private sphere by making, for example, domestic violence punishable by law regardless of the setting. Legislation also seeks to find the lines between private information in a public setting by upholding the rights of citizens to privacy in their places of work. One of the largest areas still being fought over is the right to privacy of criminals labeled "sexual predators:" those found guilty of pedophilia, rape and abuse. Once these people have left the prison system, are they allowed to resume the private life of a normal citizen, or must they also be publicly declared and labeled as their crime "for the benefit and protection of others?"

When it comes to adoption, legislation struggles to find the line between ensuring the safety of the child and a parent's right to the lifestyle of their choice. With a potentially landmark decision on gay adoption coming in early 2005, couples like Steve Lofton and Roger Croteau will be free to provide a permanent home for their children. Other individuals and couples will be able to stop lying about their own identities or enduring painful separations to escape the persecution of the adoption system in Florida. Hopefully, all adoption agencies will one day have logos like Pennsylvania's:

Pennsylvania State Adoption Logo (8).

WWW Sources

1) Lexis Nexis, "Families At Home, Strangers By Law." Tampa Tribune.

2)The American Civil Liberties Union and the ACLU Foundation. , "ACLU Asks U.S. Supreme Court to Hear Appeal in Challenge to Florida Gay Adoption Ban." American Civil Liberties Union website.

3)Lambda Legal website, "Background on Lambda Legal's Supreme Court Case Challenging Texas's "Homosexual Conduct" Law."

4)"Anita Bryant, b.1940, Singer and Crusader." , St. Petersburg Times Online.

5)"Lawrence & Garner v. State of Texas." , SodomyLaws.org

6)ACLU Lesbian and Gay Rights Project, "Let Him Stay"

7)My Florida Website, The State of Florida's Website

8)Pennsylvania Adoption Exchange, Pennsylvania Adoption Exchange Homepage

9)Lexis Nexis, "U.S. Appeals Court Narrowly Upholds Only Blanket Gay Adoption Ban." The Associated Press State & Local Wire.

10)Human Rights Campaign website, "What's Happening in My State?"

Butler, Judith. "Imitation and Gender Insubordination." Inside/Out: Lesbian Theories, Gay Theories. New York: Routledge, 1991. 13-31.


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