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All of the cases failed largely because the state argued that two-parent heterosexual households were healthier and preferable to a home provided by a single gay person or a gay couple, although no credible studies or data were presented.
The case involving Lofton, Houton, and another couple is now before the 11th Circuit Court of Appeals. In August 2001, U.S. District Judge James Lawrence King ruled that "the best interest of the child is to be raised by a married family." The ACLU appealed.
Saying they felt they'd made a strong case, ACLU lawyers prepared to follow the case through the court system.
The state's lawyer, Casey Walker, intends to do the same. The private attorney from Vero Beach tells New Times that Florida is reluctantly defending the ban. "This is a legislative issue, so the state feels more obligated to protect the integrity of the legislature," he says. "If this were a policy of the Department of Children and Family Services, the state might not be involved."
Randall Marshall, Florida ACLU legal director, doesn't buy Walker's assertions, characterizing them as a politically correct, media-ready response. "If that were the case, I believe they would look at this and ask whether it's right or wrong, was it a reasoned choice by the legislature?" he says. "But instead, they've chosen to vigorously defend it, ascribing something sinister to the gay lifestyle. Even the Department of Children and Families can't articulate one reason why gays and lesbians can't be parents. In fact, most of the people who work there, we believe, feel opposite."
The latest ACLU suit is also fashioning a very different strategy for this go-round. Strengthening their case is a February 2002 report by the American Academy of Pediatrics that determined, after three years of study, that "there is no systemic difference between gay and non-gay parents in emotional health, parenting skills, and attitudes toward parenting. No data have pointed to any risk to children as a result of growing up in a family with one or more gay parents."
The report moved the Child Welfare League, which sets national standards and policies for children, to file a motion with the federal appeals court in support of overturning the Florida ban.
With repeated losses at the state-court level, the ACLU presumed that it might have better luck defeating the law by bringing suit in federal court -- a move that mirrored 1960s civil rights litigation strategy. "Bringing a federal court challenge under the federal Constitution would be more promising because our experience is that federal judges tend to be more experienced about federal court issues." And the organization did something it hadn't before: It hired child welfare experts to represent the children.
Representing Lofton's child and Oscar Jr. is Chris Zawisza, director of Nova Southeastern University's Children First Project. Supported by the Florida Bar Association and Shepard Broad Law Center, Children First often intervenes in legislative matters relating to child welfare.
There were glaring gaps in the ACLU's previous suits, Zawisza says. "No one was hearing from the children and they have rights as well. We're saying that there is an intimacy of daily association," she says. "Mr. Lofton's child was placed with him as an infant and that's the only parent the child has known. What could be more close than that? Disrupting that would create chaos for that child."
That position is supported by the Child Welfare League of America, national foster care group Children Rights Inc., the National Center for Youth Law, and the Dave Thomas Foundation for Adoption. Those groups signed an amicus brief stating their desire to see the ban revoked.
And last week, in an effort to sway public opinion, the ACLU launched an e-mail blitz, flooding Tallahassee lawmakers with messages from Floridians who want the ban abolished.
Doug Houton learned about the suit from Miami Beach lawyer Elizabeth Schwartz, a pro bono ACLU attorney. She practices what she calls "queer family law," helping her mostly gay clientele draft wills and other documentation that legally recognizes same-sex relationships. "When you're compiling a class action lawsuit, you need someone that is in every way apple pie, an exemplary person," Schwartz says. "Doug is one of the most generous, most active, considerate parents I've ever known. A lot of people really aren't fighters, and he has really been.... He wants to take an active role on the front of this issue."
Before signing on, Houton talked with Oscar about the attention and questioned whether the boy truly wanted him to legally become his father. "I asked him if he wanted to stay with me until he is grown up, and he said yes," remembers Houton. "I talked to him a little about what it meant to be gay, and he said it didn't matter to him. Adopting him was something I have to do. Even though I have legal guardianship, there was always this nagging feeling that someone might some day take him away. I love Oscar, and I couldn't bear that."
Houton often brings Oscar to visit his baby brothers, Jimmy and Benny, who still live with Fanny and Jimmy Williams. "That boy has such a nice, nice life with Doug," says Fanny. "He's much happier. He don't try to hurt himself no more, and he talks nice to people, and I don't think he cries and screams like he used to.... It's a shame Doug can't adopt Oscar. Something wrong with that."