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Gay-Adoption Ban In Florida to Stand

Justices Decline to Hear Challenge

By Charles Lane
Washington Post Staff Writer
Tuesday, January 11, 2005; Page A04

The Supreme Court announced yesterday that it would not hear a challenge to Florida's unique-in-the-nation ban on adoptions by gays, sidestepping a case that could have thrust the court into a bitter culture war.

Without comment or published dissent, the court declined a petition from four gay foster parents and their foster children, who argued that the Florida law, adopted in 1977, violates constitutional rights the Supreme Court recognized when it struck down Texas's ban on same-sex sodomy in the 2003 case Lawrence v. Texas.

The court's action leaves in place a 2 to 1 ruling last year by the Atlanta-based U.S. Court of Appeals for the 11th Circuit, which upheld the Florida law as a rational expression of the state legislature's view that households headed by married heterosexuals are best for children.

Like the court's recent refusal to hear a challenge to the Massachusetts Supreme Judicial Court's ruling allowing same-sex marriage in that state, yesterday's decision is not a ruling on the merits of the issue and sets no precedent. But it may signal the court's reluctance to move into a politically charged area at a time when its future membership is uncertain because of Chief Justice William H. Rehnquist's bout with cancer -- and when the country is fresh from a bruising presidential election marked by a voter backlash against the prospect of more Massachusetts-style court rulings on same-sex marriage.

"It was hard to see how you decide this case without talking about Lawrence, and Lawrence is only 18 months old," said Matthew Coles, the American Civil Liberties Union lawyer who represented the Florida plaintiffs. "It's the kind of situation where the Supreme Court typically says we need to let the lower courts think about Lawrence for a while before we come back to it."

The court's caution has seemed to extend to other areas recently as well. Yesterday, the court declined an opportunity to get involved in the debate over gun manufacturers' liability for violence committed with their products. It decided not to consider a Chinese weapons maker's appeal of a ruling by the San Francisco-based U.S. Court of Appeals for the 9th Circuit that permitted a mailman shot by a white supremacist in 1999 to sue the company.

Since last summer, the court has been pondering a challenge to the validity of President Bush's 2004 recess appointment of William H. Pryor Jr. to the 11th Circuit -- without acting on it. Three similar cases have accumulated at the court since then. Yesterday, the court refused to speed up consideration of one of them, though it is expected at least to discuss the original case on Friday.

Pryor's appointment prompted a filibuster by Democrats who opposed the conservative former Alabama attorney general, whom Bush appointed during a Senate recess on Feb. 20. Now, federal criminal defendants whose appeals Judge Pryor has denied are saying Bush abused his recess-appointment power.

The Florida foster parents were disadvantaged by Pryor's presence on the 11th Circuit. They asked the full 11th Circuit to reconsider the panel's ruling, but the request was denied on a 6 to 6 vote that would have been 6 to 5 in favor of rehearing if not for Pryor.

The foster parents' petition to the Supreme Court gave the justices the option of postponing their case until it acts on the challenges to Pryor, but the justices denied the case in the first conference at which they discussed it.

The Florida plaintiffs argued there is no reason to deny all gays the right to adopt at a time when the state lacks homes for 8,000 children. They said the Florida law, passed at the time of a campaign against gays by entertainer Anita Bryant, reflects an anti-gay animus of the kind the court has previously condemned.

But the state replied in its brief, "Petitioners never showed that the gay adoption provision has ever limited the number of adoptions in any statistically significant way."

The Florida case is Lofton v. Secretary of Fla. Dept. of Children and Families, No. 04-478.

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