Gay and lesbian Floridians may not adopt, federal judge rules.

Just as there is no fundamental right to be adopted, there is no fundamental right to adopt or to apply for adoption, a federal district court in Florida has ruled.

The decision upheld the state's ban on adoptions by homosexuals. "[A]doption is a privilege created by statute and not by common law," wrote Judge James Lawrence King. (Lofton v. Kearney, No. 99-0058-CIV-KING, 2001 WL 988038 (S.D. Fla. Aug. 30, 2001).)

The plaintiffs--four gay men seeking to adopt and two children--brought action against the Florida Department of Children and Families (DCF) and the Miami-Dade County administrator. Two men were domestic partners; the others were a foster parent and a legal guardian.

The lawsuit alleged that the gay-adoption ban "impermissibly infringes" on their fundamental rights to familial privacy, intimate association, and family integrity by prohibiting them from "obtaining permanency in their relationships" and creates uncertainty about the future integrity of their families. The plaintiffs also claimed that by prohibiting only lesbians and gay men from adopting children, the provision violates the plaintiffs' right to equal protection under the law as guaranteed by the Fourteenth Amendment of the U.S. Constitution.

The suit cited the U.S. Supreme Court's decision in Troxel v. Granville, in which the Court wrote that the "interest of a parent in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests." (530 U.S. 57, 65 (2000).)

The plaintiffs asserted that this liberty interest, traditionally granted to blood relatives, should be extended to foster-family and legal-guardian family units.

The court granted the defendants' motion for summary judgment on all the claims. "[W]hile this court recognizes the need, importance, and value of foster-parent and legal-guardian relationships, it cannot extend to those relationships the liberty interest granted to biological parents in the care, custody, and control of their children," King wrote.

"The court recognizes that a family can be established by more than mere biological ties.... However, the existence of strong emotional bonds between plaintiffs does not inherently grant them a fundamental right to family privacy, intimate association, and family integrity."

He pointed to another Supreme Court case, Smith v. Offer, in which the Court "acknowledged that a parent-child relationship between an unrelated adult and child might exist and enjoy due process guarantees, but stopped short of including in such relationships those between foster parents and foster children.

"The Smith Court stated that, unlike natural families, foster parents do not have a justifiable expectation of an enduring companionship because the emotional ties originate under state law," King explained.

"The Constitution protects only those social units that share an expectation of continuity justified by the presence of certain basic elements traditionally recognized as characteristic of the family. A biological connection between those asserting this type of protection generally satisfies this standard."

King found that neither of the plaintiffs who wished to adopt the child in his care was justified in expecting his relationship with the child to be permanent. "Foster families are grounded in state law and contractual arrangements.... [T]he state does not involve itself with natural-family units that exist independent of its power, but ones directly created by it," he wrote.

King concluded that the provision banning gay adoption "does not tread upon any of [the] plaintiffs' asserted fundamental rights."

A motion for reconsideration has been filed by plaintiff counsel: the American Civil Liberties Union (ACLU) of New York City; the Children First Project of Nova Southeastern University in Fort Lauderdale, Florida; the American Civil Liberties Union Foundation of Florida, Inc., in Miami; and attorneys Elizabeth Schwartz and Steven Robert Kozlowski, both of Miami Beach.

Matt Coles, director of the ACLU Lesbian and Gay Rights Project, said, "The judge admitted that the gay families in this case have the same [type of] relationship that biological parents and their children have. But he said that didn't matter. They aren't protected by the Constitution."

Coles said that the case was "never about whether married couples provide a better home than gay couples who cannot marry." Instead, it was about the "fact that many lesbians and gay men provide all the love, support, and guidance children need--but because they're gay, that's not happening in Florida."

Florida is the only state that prohibits adoption by gay men and lesbians, but a few states--including Arkansas, Idaho, Indiana, Oklahoma, and Texas--are considering or have recently considered such a ban. New Hampshire lawmakers repealed that state's 12-year ban on gay adoption and foster parenting in April 1999. At least 21 states have granted homosexual residents the right to adopt their partners' biological children.