Lower courts are resisting the broad victory toward equality that the U.S. Supreme Court gave gays last June in striking down state sodomy laws. A pair of decisions last week on cases in Florida and Kansas suggests that solidifying that victory is not assured, it will require constant diligence and setbacks are likely.
Florida is the only state that has enacted an outright ban on gays and lesbians adopting, though it does allow them to serve as guardians and foster parents. The law has withstood several challenges.
But after the Supreme Court struck down the last remaining state sodomy laws in the Lawrence decision, last June, hopes were riding on an appeal of the Lofton case, the latest one to take on the law. Rosie O'Donnell had used her prestige to help bring attention to the issue of gay couples taking in and providing nurturing homes for kids no one wanted.
Lofton challenged the Florida ban on constitutional grounds, charging that the law violates the plaintiffs' constitutional rights to Due Process, Privacy, and Equal Protection. It was backed by the nation's leading child welfare and psychological organizations.
Their hopes were dashed Jan. 29 when a three-member panel of the U.S. Court of Appeals for the Eleventh circuit, sitting in Atlanta, ruled that the law is valid.
Rather than rely upon the Lawrence decision, the panel seemed to take its lead from the minority screed penned by Justice Antonin Scalia in that case. It took the majority of the Supreme Court to task for an opinion of 'sweeping generality' that failed to apply 'strict scrutiny, the proper standard when fundamental rights are implicated.'
The court said the question of how children fare in homosexual households was controversial. They balanced the horde of professional associations supporting the plaintiffs with the writing of the thoroughly discredited homophobe Paul Cameron.
'We are deeply disappointed by the court's decision,' said Matt Coles, director of the American Civil Liberties Union (ACLU) Lesbian and Gay Rights Project. The ACLU led the legal fight. The parties seem likely to appeal the decision, though the formal decision will not be made immediately. One question is whether to ask for an en banc review by the entire circuit or to appeal it directly to the Supreme Court.
'If a single person can adopt in Florida, if gay people can be foster parents and legal guardians, and if there are thousands of children languishing in foster care, there can be no justification for Florida's ban on gay adoptions other than impermissible prejudice and hostility toward gay people,' said Howard Simon, executive director of the ACLU of Florida.
'The judges in this case didn't just rule against gay dads and lesbian moms,' said Aimee Gelnaw, executive director of the Family Pride Coalition, 'They ruled against thousands and thousands of Florida children who need stable and loving homes.'
'What a sad day for all Americans,' said Rosie O'Donnell. 'The struggle for civil rights continues. It is my hope this case will be heard by the Supreme Court, where this absurd discriminatory decision will be reversed.'
'This ruling places a higher premium on antiquated and discriminatory assumptions about gay and lesbian people than on the best interests of the state's children and families,' said Cheryl Jacques, president of the Human Rights Campaign.
Legal experts across the ideological spectrum agree that the Lawrence decision was unusual in the sweeping breadth of its language and in not being firmly rooted in traditional legal classifications. So the fact that lower courts are interpreting the decision in different ways is not surprising.
New York University law professor Arthur Leonard wrote on the gaylaw listserv, 'If we want to be able to use Lawrence (and Romer) [the 1996 Colorado Amendment 2 decision] effectively to attack antigay government policies, we have to do everything we can to keep adverse appellate precedents such as Lofton from becoming final, precedential decisions.'
As Minnesota law professor Dale Carpenter said, 'It's now the Supreme Court's job to clear up the confusion it has created.'
KANSAS
The next day a Kansas state court of appeals upheld a state law that punishes gays more harshly than straights for having sex with minors.
In 2000, than 18-year-old Matthew Limon performed oral sex on a 14-year-old resident of a group home for the developmentally disabled where they both lived.
Had the encounter been between a heterosexual couple of the same ages, under the state's 'Romeo and Juliet' law, Limon would have been subject to a maximum 15-month sentence. But same-sex encounters were excluded from that law and Limon was sentenced to 17 years in prison.
In appealing the case, the ACLU argued that the differing sentences represented unconstitutional discrimination against gays. It cited the Lawrence decision, which struck down state sodomy laws prohibiting consensual sex between adults, including the one in Kansas.
But Judge Henry W. Green, Jr., writing for the two-member majority, said the law was reasonable in treating gay sex differently because doing so might reduce the spread of sexually transmitted diseases; encourage 'traditional sexual mores'; and promote procreation and marriage.
Justice Joseph Pierron, Jr. dissented from the view of his two colleagues. 'The courts have been given a duty to be the final protectors of our ideal of equality under the law. This blatantly discriminatory sentencing provision does not live up to American standards of equal justice.'
'The court's reasons for approving this law are absurd,' said Tamara Lange, Limon's attorney from the ACLU's Lesbian and Gay Rights Project. 'All young people should be entitled to protection from sexually transmitted diseases, and punishing kids more harshly 'protects' no one. The Supreme Court made it very clear that 'traditional sexual mores' are no longer a legitimate rationale for discriminating against gay people.'
Dick Kutrenbach, executive director of the ACLU of Kansas and Western Missouri, said, 'The court's opinion in this case defies comprehension, and we intend to seek an appeal.'
