Oct 08, 2004  |  By: PHIL LaPADULA  | COMMENTS     

After a federal appeals court upheld Florida’s 27-year-old gay adoption ban in January, Key West resident Wayne LaRue Smith’s 6-year-old foster son saw pictures of his two dads on the front page of the Key West Citizen newspaper.

He reacted with the curiosity typical of a healthy 6-year-old.

“Why are you and Dan [Skahen] in the newspaper?” he asked Smith. “Are you guys millionaires or something?”

Smith told him that he and his partner were in the newspaper “because I wanted everyone to know that we love you.”

“Would you make them put in the newspaper that I love my dads, too,” said the 6-year-old, whose name Smith did not want published to protect the child’s privacy.

Couple has taken in 23 children
The U.S. Supreme Court now has a chance to decide whether that love should receive the legal protections as a child’s love for his heterosexual adoptive parents.

On Oct. 1, the American Civil Liberties Union filed a 40-page brief asking the high court to hear the case of Smith and Skahen, and another gay Florida couple. Both couples are seeking to adopt their foster children.

Lawyers expect to know by January if the court will hear the case, an ACLU spokesperson said this week.

Over the past six years, Smith and Skahen have cared for 23 foster children for periods ranging from a few days to several years. Recently, the state’s Department of Children & Families asked Smith and Skahen to become permanent guardians.

Judge Sandra Taylor granted the couple permanent custody after describing them as “model parents.”

But they can’t adopt the boy because of Florida’s law, the only one in the nation that prohibits both gay individuals and gay couples from adopting children.

A permanent home, but few rights
“He can stay with us until he’s an adult,” Smith said. “It gives him the permanency that we were seeking, but he doesn’t have the rights and benefits that go along with it.”

Smith noted that if the parents of an adopted child die, the child is entitled to Social Security payments. But a foster child would not receive those benefits. A foster child also lacks the inheritance rights that an adopted child has.

In addition, Florida law guarantees every child who is adopted out of the foster care system with a college education paid for by the state. But Smith’s foster son will not receive that benefit either.

Smith said he would pay to put his son through college. But he laments that the state of Florida has made him “a second-class citizen.”

Smith thinks that adoption decisions should be made on a case-by-case basis with the best interests of each child in mind.
“Florida’s government and our current legislature do not have the courage to do what’s right for kids,” Smith said. “A convicted child molester can apply to adopt children in Florida as long as he’s not gay.”

Gov. Bush stands by the ban
Jacob DiPietre, spokesperson for Gov. Jeb Bush, said the governor “supports the law.”

“The governor believes that a child’s best interest is in a home with a mother and a father,” DiPietre said. Even if placement in a mother-and-dad family is not available, “it doesn’t mean the department shouldn’t search and strive for those placements,” DiPietre said.

But Smith pointed out that there are about 5,000 children in Florida’s foster care system without permanent homes.

Many of those children have developmental issues or behavioral problems caused by being abandoned or abused by their biological parents. Others suffer from serious illnesses, such as HIV. Some are simply too old to be adopted.

While Florida forbids them to adopt, the state relies on gay couples such as Smith and Skahen to provide stable homes to many children with health and developmental issues who are harder to place in adopted homes.

Statistically, more people who adopt children want infants, Smith said.

Paul Cates, director of public education for the Lesbian & Gay Rights Projects of the ACLU, said lawyers for the gay couples will argue that there is “no rational basis” for Florida’s gay adoption ban. It is intended solely to “disadvantage and discriminate against” a class of people, Cates said.

He said lawyers will cite two recent Supreme Court cases — Lawrence vs. Texas and Romer vs. Evans — in their arguments.

Romer vs. Evans overturned ...