A Queer Law
Two weeks before Christmas in 1995, Doug Houton got a handful of unexpected gifts.
The 32-year-old pediatric nurse was in the middle of his afternoon shift at Fort Lauderdale's Children's Diagnostic and Treatment Center. He was thinking about what to do for the holiday -- maybe take a vacation to see a friend in New York City, go to a few parties, catch up on some sleep. Then, he spotted a disheveled and jumpy-looking man in the waiting room. As the visitor approached, he recognized him as Oscar Williams, the father of twin babies and a three-year-old boy whom Houton had treated for two years. It was known around the ward that Williams had a history of drug and alcohol abuse and was frequently out of work.
"All of a sudden, he started telling me how he'd lost his apartment and that he didn't have any food for the kids," remembers Houton. "He kept saying, 'Here, you take the boys and give them a good Christmas.'"
Before the nurse could fully grasp what was happening, Williams had disappeared. "I thought, 'OK, I have two weeks off,'" Houton says. ""I love kids. What's a couple of weeks, you know?' That was 2 in the afternoon. By 5, I had all the kids and we were in my car heading to my house."
Two weeks passed. Then three. Then four. "I didn't know how long it was going to last, but I can tell you it was a little chaos," Houton recalls. "I mean, I go from having zero kids to three under five. Oh my God, you've never seen the freak-out I was having."
Meanwhile, Fanny and Jimmy Williams, who live in Fort Lauderdale, had been looking for their grandchildren. "We were saying to our son, to Oscar, 'Now, where are your children, Oscar?'" Fanny recalls, her voice cracking with strain. "I said, "Don't you wanna know where your babies are?' But he wouldn't tell us. When he's on that dope, ain't nothing that matters to him. He told me, 'They all right and with a nice man.'"
Eventually, Houton contacted the Williamses through a social worker at the clinic. Although the grandparents barely knew Houton, having talked to him only twice at the clinic, they were comfortable with him caring for their grandchildren. "I knew he seemed like a nice man," Fanny says.
A couple of weeks later, Fanny and Jimmy went to Houton's Fort Lauderdale home, intending to pick up all three boys. But the couple, both in their 70s, took only the twins. They left Oscar Jr. because the toddler was too "out of control."
"Nothing we could have handled," the grandmother sighs. "He would bang his head against the wall and throw fits. We liked the babies because they quieter."
Once again, Houton did what he felt he had to do. "The grandparents didn't get [Oscar] for whatever reason, but I knew I wasn't going to abandon him," says Houton. "He was sort of my responsibility at that point, and I just accepted that because it just felt very right." Houton pauses, and his blue eyes narrow.
Still in his scrubs from work, he's sitting on the bleachers at the Boys and Girls Club of Greater Miami, watching Oscar's skinny legs speed down the basketball court. Oscar, now ten, looks up at Houton a lot, no doubt for reassurance that he will end his first season of pee-wee ball victoriously.
"My friends thought I was nuts," Houton admits, "that I'd completely lost my mind when this began. Most of us were in our late 20s and early 30s. But I also had money, a stable life, a stable job. You can say fate or whatever, but sometimes your life just presents these roads to you, and I felt like I was prepared and that I was meant to have him."
But Houton, who applied for, and was granted, legal guardianship of Oscar in 1996, quickly realized that raising the boy would be demanding. Born to a crack-addicted mother who often left her infant children alone for days at a time, Oscar had been severely physically abused. His mother once burned the toddler with an iron so bad that he had to be hospitalized. For that, a judge found her guilty of neglect, took custody from her, and gave it to Oscar Sr. But the little boy's father wasn't going to win any parenting awards either, say Jimmy and Fanny Williams.
"We went over to his apartment once, and it was all dirty, dark, just real depressing. The kids hadn't been fed for a long time, we could tell," says Fanny. Referring to Oscar Sr.'s drug use, she continues, "My son was just having one of his fits. Oh my goodness, it was awful, because little Oscar looked like he was about dead. That child couldn't have weighed more than 20 pounds."
When Houton first brought Oscar Jr. home, the child had barely a 25-word vocabulary. The emotional trauma he had endured left him prone to long crying jags, sadness, insecurity, and an extreme fear of abandonment. Houton needed help. So he called his mother, a former second-grade schoolteacher, and his sister, who specializes in developmental disorders at an upstate New York clinic. Houton paired their advice with his own learn-as-you-go parenting skills, reading to Oscar twice a day and taking him to experts in developmental disorders.
After a year with the boy, Houton wanted to adopt Oscar.
But he couldn't. Houton is gay.
Since 1977, homosexuals have been expressly banned from legal adoption in Florida.
Although foster guardianship, which gays can obtain in the state, is meant to be short-term, the tie often lasts for years. According to the Florida Child Adoption Association, 3400 children up to age 18 are in the state's custody. The vast majority of these kids are at least five years old and have abusive backgrounds that have caused emotional and behavioral disorders. As a result, they are often harder to place. If a child is matched with an individual or couple willing to take on the inevitable extra work, long-term foster relationships are acceptable. But child-welfare experts say adoption is ideal to make both guardian and child feel ultimately secure in their bond.
Houton is now an expert on the gay-adoption ban. Florida is the only state that prohibits adoption by all gays. Mississippi and Utah have laws banning adoption by same-sex couples, which is slightly different but has the same effect. "I'm just disgusted to live in a state that blatantly refuses to recognize my civil rights. This is not about a suit, really; it's about someone seeing what Oscar and I have undeniably."
To Oscar, Houton became simply "Dad." The nurse took care of the boy when he got sick, read to him every day, hugged him when he was afraid, took him to the beach to play, and disciplined him when necessary. Oscar, still a very shy child, doesn't respond when asked about his biological father, who sees his son for extremely rare "five-minute cameos," Houton says. Last year, Oscar Sr. agreed in writing to relinquish his parental rights, say Houton and the boy's grandparents. Oscar Sr.'s whereabouts are unknown. A phone number Fanny and Jimmy Williams provided to contact him is disconnected.
"We're very glad that Doug wants to have Oscar," Fanny Williams says. "That boy has had a great upbringing with him. My son at first didn't tell me that Doug was gay 'cause he thought it would trouble me. But I don't care about none of that. I don't care, either, that Doug is white. What matters to me is how well Oscar is looked after. I tell ya, that child'd have a very hard time if somebody take him from Doug."
Adoption seemed the best way to quell Houton's nagging fear that someone could remove Oscar. Indeed, if a straight person were to apply tomorrow and pass all state Division of Children and Family Services interviews and background checks, Houton's custody could be revoked without warning.
While Houton searched for a way to keep Oscar, the Florida ban received little media attention. But as with many taboo political issues, a celebrity's disgust with the law has recently drawn attention to it. Talk-show chatterbox Rosie O'Donnell, who owns digs in Miami Beach, pulled an Ellen last month. Very methodically, O'Donnell opened her closet door. She first outed herself in a best-selling memoir, Find Me, last month, then last week sat down for some prime-time tell-all with Diane Sawyer and Barbara Walters. Despite the soft lighting and touchy-feely vibe of the interviews, which aired on ABC, O'Donnell didn't hold back telling America how she feels about her adopted state's law.
"If you think heterosexuals make better parents than homosexuals, I have 500,000 pieces of evidence to show you that heterosexuals are not always great parents. Virtually all of the children who are in foster care were taken out of heterosexual homes," she told Diane Sawyer. "Sexuality is not a precursor to good parenting. What you need to be a good parent does not have anything to do with sexuality. Anyone, if Governor Bush or his brothers disagrees with me, then I invite them to come spend four days with me and my kids. They'll change their mind."
But O'Donnell has done more than give the ban lip service. She is working with the American Civil Liberties Union to help overturn the law.
In 1999, at a time when O'Donnell was still gushing over Tom Cruise on her show, Houton and two other gay couples who wanted to adopt became part of a class-action lawsuit filed by the national branch of the ACLU against the State of Florida.
But the lawsuit wasn't the ACLU's idea. A man in a situation similar to Houton's instigated it. Miami pediatric-AIDS nurse Steven Lofton wanted to adopt an HIV-positive boy who had been born with traces of cocaine and marijuana in his body.
Lofton, who had been a foster parent to many other children, including some with HIV, gained legal guardianship when the boy, now ten, was two months old. Lofton is the only parent the child has ever known. "It was really Steven who helped us start formulating very carefully how to approach the issue again," says Leslie Cooper, a Gay and Lesbian Rights Division attorney with the ACLU's national branch. The intense relationship between Oscar and Houton added heft to the suit.
The lawsuit, which contends that the law violates homosexuals' 14th Amendment guarantee of equal protection, is the third attempt to overturn the ban in the past 12 years. Those cases, all brought by the ACLU, were tried in South Florida state court; each fizzled out during a lengthy appeals process. The last one, which ended in 1997, involved a Fort Lauderdale woman whose adoption papers were thrown out by an agency. The case made it to trial court but was shot down, and the woman declined to appeal.
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."
By the time Houton had been formally added to the suit, he and Oscar had moved to Miami. Houton got a job as a trauma nurse at Jackson Memorial Hospital. Oscar was seven and attending Coconut Grove Elementary School. The 90-pound boy with wide caramel eyes was exhibiting athletic promise, constantly running, playing basketball, and kicking a soccer ball. He had long ago stopped wrapping his arms around Houton's leg when his foster father dropped him off at school. He was making friends and papering his bedroom wall with posters of Michael Jordan and Alonzo Mourning. And he'd become -- no small achievement -- a seasoned Jenga board-game champion.
"Oscar is a great kid, and I think I'm looked at like a good parent. I've never felt any kind of prejudice from that school," says Houton, a PTA member. "And I've only gotten nice words from black people. I don't know why I've had a friendly experience mostly. I guess it might be because I'm a regular guy and not a flaming hairdresser."
Oscar's teachers say he still struggles with school work but is rapidly improving. His favorite book is Green Eggs and Ham.
A litany of people strongly disagrees with the state's contention that allowing Houton to adopt Oscar would not be in the boy's best interest.
Houton's live-in partner of three years, 38-year-old Gil Avila, is a tall, athletic man with a quiet nature. Houton describes Avila as the "straight man" in their relationship because he's a sports junkie, always shooting hoops with Oscar in their back yard. The two met at work; Avila is a supervisor of the radiology department at Jackson Memorial. On their first date, Houton told him about Oscar.
"I was a little surprised, sure," he remembers. "But it was fine; you know, I liked Doug a lot. I didn't meet Oscar until our third date, and the kid... isn't he incredible? He's really something. When Doug first took him, he really couldn't do much of anything; he was really underweight. Now, all you have to do is look at him and I, personally, see a very different kid."
Avila and Houton share the responsibility of making sure Oscar is ferried back and forth from school. They both meet with his teachers and shuttle him to sporting events. A few months ago, when Oscar turned ten, Houton rented a limousine (knowing that Oscar is mesmerized by them) and chauffeured the boy and eight of his buddies to a Heat game, where Oscar was wished Happy Birthday on the scoreboard.
"That was unusual, but Doug really does special things for him that he'll remember forever," Avila says. The ACLU lawsuit has brought a barrage of bright lights into their living room, as reporters have continually come knocking for interviews. Avila admits that that can sometimes distract them from living like a normal family. "But I believe in the cause very much, and so does Doug. He's doing what he thinks is right and what he and Oscar deserve."
Oscar's love for basketball has allowed Linda Overheu a chance to get close to the shy boy. The 28-year-old model, who has mentored the boy for two years through the Big Brothers, Big Sisters program, moved to South Florida eight years ago. She sees Oscar almost every day, because the two happen to live near each other, and she frequently takes him to Fort Lauderdale to visit his grandparents and brothers.
"Oscar has really opened up," she says. "When I met him, he didn't say very much, but we'd walk dogs together, and we'd talk. I like to play basketball. You know, it was just allowing him to be a kid. He's very affectionate with his brothers. I've never met his father."
"Linda has been great, because I wanted Oscar to have a female influence," Houton says. "And to have a model, well, that's just even better. I know in a few years, Oscar's going to look at her and drop his jaw like, 'Oh my God, that's my big sister!'"
Oscar's best friend, nine-year-old Emmanuel Teagan, sometimes joins Overheu and Oscar. The boys met when they were on the same soccer team and are now inseparable. They spend every night with each other, switching between Houton's home and that of Tracy and Mark Teagan. Emmanuel was seven years old when the Teagans adopted him. Emmanuel is black. The Teagans are white.
"I felt comfortable immediately with Doug. I guess we identified with each other," Tracy Teagan says. "We haven't encountered any prejudice, at least to our face, and maybe that's because we live in [Coconut] Grove, and it's particularly progressive. But my neighbors will say, when they see Doug and Oscar, "So what's the story with that?' When I tell them that Doug can't adopt, they're like, "You're kidding me? That's awful.' It seems ridiculous, and hardly anyone knew it was against the law. The guy is the most attentive parent in the world. It makes no sense."
Raising Emmanuel has presented frustrations for the Teagans that Houton's advice has soothed. The child, who today is taking jazz and hip-hop dance classes, just a year ago was an angry, frightened boy suffering from the aftereffects of years of sexual and physical abuse. Tracy says she learned from Houton the importance of being firm with her son. "Doug told me that these children, more than others, need structure double-fold because they have lived in such chaos and adults have never come through for them," she says. "That sounds like common sense, but when you have a child who is fighting you, testing you, it's hard to live up to that."
Teagan recalls Emmanuel calling her from Houton's home. "My husband and I had arranged to spend the day with each other," she says. "I take the kids one day, and Doug takes them another day, so we have that kind of private time. Emmanuel was throwing a fit, telling me that he wanted to come home, and I almost caved. But Doug told me to just allow him to get over it, and he did. The rest of the day was fine."
Mostly unaware of how the ban on gay adoption came to be, Teagan continues, "Telling someone like Doug that he can't parent Oscar is so offensive to me. He's already a parent. He's more than earned the right to be that wonderful boy's father in full. And it upsets me very much that I live in a state that refuses to see that."
Both Houton and the Teagans were living elsewhere on the East Coast more than a quarter century ago when a former beauty queen arrived in Florida, took up residence in Miami, and began preaching that gays were going to hell.
Today, Anita Bryant appears on her Website as a small-time Branson, Missouri, performer decked out in bedazzled denim and pancake makeup. She performs every week in the wannabe Vegas map speck, belting tunes that only your grandparents remember. But in the late 1970s, Bryant was a force. Using the fame she acquired by entertaining the World War II troops and as the pitchwoman for Florida orange juice, Bryant made use of her fundamentalist Baptist upbringing by persuading the state's conservative masses to form Save the Children. The now-defunct organization was the beginning of the religious right.
Bryant delivered her message across the state. "What these people really want, hidden behind obscure legal phrases, is the legal right to propose to our children that there is an acceptable alternate way of life," she said. "I will lead such a crusade to stop it as this country has not seen before."
Holding rallies and mobilizing the faithful, Bryant convinced many that homosexuals wanted not simply to adopt children but to recruit them to their sinful lifestyle. Bryant is credited with creating the momentum that caused the Dade County Commission to overturn an ordinance prohibiting discrimination based on sexuality. It snowed for the first time in Miami the night the ordinance was passed in 1977, an eerie sign to her followers that evil was about.
And the issue continues to be controversial today. Although the Miami-Dade Commission in 1998 passed an antidiscrimination measure, voters will be asked September 10 whether they want to repeal it. Commissioners agreed, although reluctantly, to include the issue on the ballot out of necessity. This past December, a group called Take Back Miami-Dade secured enough signatures (51,026) to request the repeal of the amendment to the county's Human Rights Ordinance.
As for Bryant, her glory days seem long gone. Reporters have tried to contact her, as New Times did, but she's kept mum about what she thinks of her former state's ban and the ACLU lawsuit. Her Website doesn't mention anything about her antigay crusades. It celebrates the past, focusing primarily on the entertainment she provided for World War II soldiers.
And some of the legislators who originally passed the ban have changed their minds about it. Eight current and former lawmakers, mostly Democrats, released a formal statement this month saying they were wrong. Former legislator Elaine Bloom, who voted for the ban long ago, made it to the Miami Beach mayoral runoff this past November at least partly by courting the gay vote. She told reporters two weeks ago that the ban was "fueled by ignorance."
That's a long way from the rationale of the 1977 bill's sponsor. "We're really tired of you," the late state Sen. Curtis Petersen told Florida's gays. "We wish you'd go back into the closet."
Regardless of how past lawmakers feel about the statute, it's the current legislature that could make a difference. But with no openly gay legislators in office and Democrats in the minority, the drama surrounding the issue could shift to Florida's gubernatorial race. Former U.S. attorney general and Democratic ticket hopeful Janet Reno has been wooing the gay vote since announcing last November that she wanted to take the Tallahassee throne from Jeb Bush. On March 2, she announced that she supports revoking the ban during a visit to St. Petersburg's Suncoast Resort, which advertises itself as the "world's largest all-gay resort and entertainment complex." Another Democratic candidate, Tampa attorney Bill McBride, would also like the law dissolved. Governor Bush has stated that he remains in favor of it.
"Obviously, it's much harder for us to change the law if Bush is sitting as governor," says ACLU attorney Schwartz, who is openly lesbian. "And I don't think a lot of Floridians, from my experience, even know a gay person, so we seem like all leather daddies and drag queens. I'll continue to have dozens of clients worthy of becoming parents choose to either leave the state or try other methods to get around the law."
Schwartz says she knows that many gays and lesbians don't disclose their sexual preference or present themselves as straight when adopting. Some get attorneys to falsify papers, while others turn to artificial insemination rather than face the dilemma.
"It's an absolute shame that things come to that," she says. "But what we're doing is denying a group of people their fundamental right to have a family."
It's raining and dark outside the Boys and Girls Club of Greater Miami. But inside, the place is cooking. The score is tied, and it's halfway through the third quarter when one father's voice from the back bleacher is heard above all other parents'.
"Oscar, steal it! That's right, yes! Take it away and to the hoop, yes, yes, yes.... Arghhhhh!"
Houton is sitting cross-legged in his green scrubs with a wrinkled brow. "Did you see that? It was so close. He's having an off night. I mean, he gets nervous when people are watching him."
Avila nods and pulls his baseball hat down slightly, intently watching a pair of knobby, ten-year-old legs topped off by a black, number 8 jersey scurry down the hard wood. Oscar looks up at both of them and smiles widely.
The score is excruciatingly close. Parents are holding their breath as Oscar, with three seconds on the clock, heaves the ball from around the free-throw line. The collective moan from the bleachers resonates throughout the gym as the ball taps the rim. It's 29 to 27 at the final buzzer. Oscar bows his head and digs his Nikes into the floor. They lost. But in less than ten seconds, he and his teammates are making funny faces and slouching toward the post-game handshake line.
Houton turns to Avila to debate whether to order pizza tonight. Like the other parents, they watch the coaches line up the kids for more drills. Houton grows impatient, huffing that it's already 8:30 and Oscar still has homework to do. The two also have to walk the family dog, a nightly ritual. But the children are getting a post-losing-game speech from their coach, who seems to be bucking up their spirits. "He'll be fine," Houton says, assuring himself aloud about his son's first experience with losing.
He's right. There seems enough determination between them to defeat any of their challengers. Unfortunately, federal courts and shortsighted legislators play tough defense.
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