Whose Family Is it Anyway? The Continuing Struggle for Lesbians and Gay Men Seeking to Adopt Children

William E. Adams, Jr.^*

  Introduction

Courts across America continue to grapple with the reality of lesbians and gay men⁽¹⁾ raising children.⁽²⁾ The increasing number of court cases involving lesbians and gay men in the family law area is, in part, a reflection of the growing visibility and political strength of gays and lesbians in this country.⁽³⁾ Gay and lesbian parents are increasingly willing to fight for custody and visitation rights to their biological children.⁽⁴⁾ The growing number of cases also reflects changes in science permitting individuals to have children through artificial insemination.⁽⁵⁾ Lesbian couples in particular are utilizing this technology to have children,⁽⁶⁾ and they are formulating arrangements that seek to establish legal recognition of their decision to "co-parent"⁽⁷⁾ the children.⁽⁸⁾ In addition, some gay men and lesbians are seeking to adopt children on their own.⁽⁹⁾ A 1976 article estimated that there were over 1.5 million lesbian mothers in this country,⁽¹⁰⁾ and it is likely that this number has grown significantly since then. Academic researchers have attempted a variety of methods to estimate the number of gay and lesbian parents, with some estimates being as high as eight million.⁽¹¹⁾ In spite of these changes, courts in some states continue to resist the idea of lesbians and gays as adoptive parents.⁽¹²⁾

This Article focuses on the issues concerning "stranger adoptions" as exemplified by ongoing litigation in the state of Florida, which along with the state of New Hampshire, completely prohibits homosexuals from adopting children.⁽¹³⁾ Because of the overlapping issues with co-parent adoptions and other child custody cases, Part II of this Article also briefly discusses some of those cases in order to examine the pervasiveness of the stereotypes concerning gays and lesbians as parents.⁽¹⁴⁾ Part III of this Article reviews some of these myths and other unsupported assertions raised by the opponents of the adoption of children by gays and lesbians.⁽¹⁵⁾ The homophobia⁽¹⁶⁾ or heterosexism⁽¹⁷⁾ demonstrated by the courts is also discussed.⁽¹⁸⁾ Although most of the child custody cases to date have involved lesbians,⁽¹⁹⁾ the discussion will be equally relevant to putative gay fathers and will attempt to note any differences in issues and analyses between lesbians and gay men where appropriate.⁽²⁰⁾ This Article does not discuss the separate issue of attempted adoptions of an adult by another adult in order to obtain the legal protections afforded family members for inheritance and similar purposes.⁽²¹⁾ The legal arguments concerning gay and lesbian adoption cases are discussed in Part IV. Part V of the Article discusses the cases in Florida challenging the state's ban on adoption by homosexuals. The Florida statute and the courts' interpretation of it exemplify many of the problems that lesbians and gays encounter in family law litigation.⁽²²⁾ The cases challenging Florida's statute are discussed in order to demonstrate the pernicious effects of heterosexism and homophobia, which are still very much alive in the American legal system.

  Adoption and Child Custody

A.  Child Custody Cases

1.  The History of Lesbian and Gay Parent Cases

In order to place the adoption cases in proper context, it is instructive to review briefly the decisions of courts regarding custody of children in cases not involving adoptions. Although trends are changing, the history of the courts in deciding custody and visitation issues for lesbian and gay parents has been laced with heterosexism and homophobia.⁽²³⁾ Some courts have expressed a fear that the minor children will be subjected to harassment or ostracism by their peers.⁽²⁴⁾ Other courts have expressed a concern that the child will become homosexual,⁽²⁵⁾ or that the child's moral well-being will be jeopardized.⁽²⁶⁾ In addition, some courts have refused to permit an adoption by a homosexual couple where the state has a sodomy statute.⁽²⁷⁾ Some courts have questioned the motives of a homosexual seeking to adopt a child.⁽²⁸⁾ More distressingly, some judges have rejected the scientific evidence disputing the claims about sexual molestation by homosexuals.⁽²⁹⁾ Moreover, other courts have disregarded expert testimony in favor of the unsupported fears of the opponents of gay and lesbian custody.⁽³⁰⁾ As has been noted by a number of commentators, the decisions may have been more likely to reflect the moral and value biases of the judges rather than sound legal reasoning.⁽³¹⁾

2.  Recent Child Custody Cases

Although gays and lesbians are winning more family law cases, a review of recent decisions indicates the continuing difficulty faced by lesbians and gays in obtaining custody and visitation rights.⁽³²⁾ The context within which custody battles occur varies depending upon the parties who are concerned about the child's placement. Some cases involve the co-parents of the child,⁽³³⁾ while others are between a co-parent and a biological relative.⁽³⁴⁾

For instance, in McGuffin v. Overton,⁽³⁵⁾ the Michigan Court of Appeals addressed a custody dispute between a biological father and the deceased mother's lesbian partner.⁽³⁶⁾ The court held that the lesbian co-parent lacked standing to challenge the custody granted to the biological father.⁽³⁷⁾ The biological mother of the children, Leigh Porter, had begun a monogamous lesbian relationship with the petitioner, Carol Hess, who changed her surname to Porter in 1987.⁽³⁸⁾ Leigh stipulated in her will a preference for her partner to be the children's guardian, and executed a power of attorney to delegate parental authority to Carol.⁽³⁹⁾ Leigh died in January 1995.⁽⁴⁰⁾ The will asserted that the biological father had not established any relationship with the children, and as of March 1995, the father was $20,000 in arrears in child support payments.⁽⁴¹⁾ One of the courts in which guardianship petitions were filed (there were separate paternity actions for the children because they were born in different counties⁽⁴²⁾) granted physical custody to the father.⁽⁴³⁾ The court refused to grant standing to Carol⁽⁴⁴⁾ pursuant to a Michigan statute which limited the circumstances under which third parties have standing to seek custody.⁽⁴⁵⁾

The Florida District Court of Appeal, in Music v. Rachford,⁽⁴⁶⁾ denied the right of a co-parent to visit with the child of her former partner.⁽⁴⁷⁾ The couple in this case was involved in a relationship between 1989 and 1993, during which time the couple agreed to rear a child together.⁽⁴⁸⁾ One of the partners, Rachford, agreed to be artificially inseminated, and further agreed that the child would be given the surname of Music.⁽⁴⁹⁾ The court found that it had no authority to grant visitation to a person who was not a parent, grandparent or great-grandparent.⁽⁵⁰⁾

Moreover, even when courts permit gays or lesbians to maintain custody, they sometimes impose unreasonable restrictions upon the gay or lesbian parents' lifestyle.⁽⁵¹⁾ The Tennessee Court of Appeals upheld an award of custody to a lesbian mother in In re Michael Lee Parsons.⁽⁵²⁾ However, the trial court ruled, and the appellate court noted with approval, that there should be no "inappropriate expression of sexual conduct between [Ms. Carson] and [her] roommate."⁽⁵³⁾ Such stipulations are still too common in custody cases involving lesbians and gay men.⁽⁵⁴⁾ Would it be legitimate to ask what sort of sexual conduct between two persons in a committed, long-term relationship is "inappropriate"? Is a hug or a kiss between two life-partners sexual conduct? Would it not be appropriate for persons in a long-term relationship to engage in sexual conduct more intimate in nature?

In other instances, court victories by gays and lesbians do not end the struggle, but rather continue it. The Court of Civil Appeals of Alabama, in Hembree v. Hembree,⁽⁵⁵⁾ reversed an award of custody to the grandparents of a child whose mother was a lesbian.⁽⁵⁶⁾ The court's finding, that the evidence did not overcome the presumption favoring parental custody, implicitly rejects the argument that lesbianism per se makes a parent unfit.⁽⁵⁷⁾ Nevertheless, the case was remanded to the trial court for consideration of further evidence.⁽⁵⁸⁾

B.  The Difference Between Adoption and Other Child Custody Cases

The custody cases regarding biological parents of children involve the fundamental constitutional rights recognized by the courts.⁽⁵⁹⁾ Persons seeking to adopt or obtain custody of children do not have the same level of constitutional protection as do biological parents.⁽⁶⁰⁾ Courts often state that adoption is a privilege, not a right.⁽⁶¹⁾ In addition, courts have expressly rejected constitutional challenges to adoption denials.⁽⁶²⁾ Adoptions were not a part of the English common law.⁽⁶³⁾ Modern adoption statutes are generally traced to 1851, when Massachusetts first passed its adoption statute.⁽⁶⁴⁾ The early statutes were primarily concerned with the needs of the biological parents and the adoptive family, rather than the needs of the child or children being adopted.⁽⁶⁵⁾

Adoptions are arranged by public or private agencies or other private placements, and are reviewed by the courts which determine a child's best interests.⁽⁶⁶⁾ The values utilized by these agencies in selecting adoptive placements have been criticized for being outdated, unrealistic, and overly subjective.⁽⁶⁷⁾ The broad discretion given to these agencies is sometimes utilized to make adoption more difficult for lesbians and gays--particularly gay men.⁽⁶⁸⁾ The failure to understand the realities faced by lesbian and gay families is shared by judges as well as social workers.⁽⁶⁹⁾

C.  Different Types of Adoptions

1.  "Stranger" Adoptions

The adoption cases in which gays and lesbians typically are involved primarily fall into two different categories, which will be referred to in this Article as "stranger" adoptions and co-parent adoptions. "Stranger" adoptions occur when the person or persons seek to adopt a child whose biological parents are unable or unwilling to rear the child and the child is not related to either of the putative adoptive parents.⁽⁷⁰⁾ Stranger adoptions have been permitted in the District of Columbia, Ohio, and California.⁽⁷¹⁾ It is this type of adoption which is at issue in the Florida cases discussed below.⁽⁷²⁾

Only Florida and New Hampshire statutorily bar adoptions by gays and lesbians.⁽⁷³⁾ Massachusetts prohibited gays and lesbians from being foster parents by regulation, but the policy was dropped in 1990 in settlement of a lawsuit.⁽⁷⁴⁾ The Florida statute was declared unconstitutional by a Florida trial court,⁽⁷⁵⁾ but the Florida Supreme Court upheld the statute pending a remand on the equal protection claim.⁽⁷⁶⁾ Some gays and lesbians, desperate to adopt a child, resort to subterfuge in order to accomplish their goal, but they do so at their own peril because fraud can result in the procedure being overturned.⁽⁷⁷⁾

Florida and New Hampshire are not the only states uncomfortable with gay and lesbian stranger adoptions. The Supreme Court of Ohio finally permitted the adoption of Charles B., an eight-year-old boy with leukemia and learning disabilities, by a gay man,⁽⁷⁸⁾ after reversing the intermediate appellate court which had found that homosexuality and adoption were "inherently mutually exclusive, if not hostile"⁽⁷⁹⁾ concepts. Furthermore, other states, through formal and informal policies, have discouraged adoption and foster care by lesbians and gays.⁽⁸⁰⁾

2.  "Co-parent" Adoptions

Co-parent adoptions involve the attempt by the life-partner⁽⁸¹⁾ of the biological parent to adopt the child so that the child is part of a family with two parents.⁽⁸²⁾ The partner normally seeks such a co-parenting arrangement for a variety of reasons: (1) guaranteeing rights should the biological parent die or become incapacitated;⁽⁸³⁾ (2) protecting the rights of the non-biological parent should the couple separate;⁽⁸⁴⁾ and (3) the emotional benefit of recognizing the non-biological parent for the parental role which the partner occupies.⁽⁸⁵⁾ There is also a psychological benefit to the child of having both parents legally recognized.⁽⁸⁶⁾ Typically, a co-parent seeks to be appointed guardian, petitions the court for custody or visitation, or adopts.⁽⁸⁷⁾ Second parent adoptions have been permitted in Alaska, Colorado, the District of Columbia, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, Texas, and Vermont.⁽⁸⁸⁾ Of the three states' highest courts which have ruled on the legality of second parent adoptions, two have permitted them.⁽⁸⁹⁾ One of the legal impediments to such arrangements is that adoption in some states terminates the rights and obligations of both biological parents.⁽⁹⁰⁾ This can, however, be avoided if the state has an exception permitting step-parents to adopt.⁽⁹¹⁾

The courts that are granting co-parent adoptions are utilizing a variety of approaches. In Colorado, the state District Court of Boulder County approved a joint adoption petition in In re K.J. & R.Z.,⁽⁹²⁾ on behalf of two women partners, one of whom conceived the child through artificial insemination.⁽⁹³⁾ In this case, the court relied upon the step-parent exception to the normal rule that an adoption terminates parental rights of the birth parents.⁽⁹⁴⁾ In New Jersey, the appellate division approved an adoption petition by a lesbian co-parent whose partner had given birth to twins.⁽⁹⁵⁾ The District of Columbia Court of Appeals authorized joint adoptions by same-sex co-parents in In re M.M.D. & B.H.M.⁽⁹⁶⁾ The Appellate Court of Illinois ruled that two lesbian couples had the right to jointly adopt the children of one of the partners in In re K.M. & D.M.⁽⁹⁷⁾ This case turned upon whether unmarried couples could jointly adopt children.⁽⁹⁸⁾ The couples were eventually granted permission by the trial courts to adopt.⁽⁹⁹⁾

  The Psychological and Sociological Arguments Concerning the Abilities of Lesbians and Gays to Parent

A.  The Fears of the Opponents of Lesbians and Gays as Parents--A Case Study

The opponents of granting gays and lesbians legal parental status raise similar arguments in the various types of family law litigation. The Rutherford Institute, a self-described non-profit religious corporation which assists litigants in significant cases relating to the First Amendment Free Speech and Religion Clauses, filed an amicus brief⁽¹⁰⁰⁾ in Cox v. Florida Department of Health & Rehabilitative Services.⁽¹⁰¹⁾ The arguments set forth in the Rutherford Brief exemplify the fears of the opponents of lesbians and gays as parents. The Rutherford Brief listed the following arguments in its opposition to gay and lesbian adoptions:

1. "Children raised in homosexual households are more likely to become homosexual."⁽¹⁰²⁾

2. "Children raised in homosexual households experience emotional problems associated with their parents' homosexuality."⁽¹⁰³⁾

3. Children raised in homosexual households share greater "risk of social or psychological problems."⁽¹⁰⁴⁾

4. "Most homosexual parents [are] unable to provide emotional stability to their children" because they are promiscuous, "have an unhealthy attitude toward the opposite sex," "have fleeting relationships," and "experience extracurricular relationships."⁽¹⁰⁵⁾

5. "Children raised in homosexual households have a greater risk of sexual involvement with a parent."⁽¹⁰⁶⁾

6. "Homosexual conduct is per se contrary to society's morality and decency and homosexuality is a disorder."⁽¹⁰⁷⁾

7. Homosexual practices threaten the individuals' and the public's health in part because of their tendencies to transmit Acquired Immune Deficiency Syndrome (AIDS), syphilis, hepatitis B, and enteric diseases.⁽¹⁰⁸⁾

8. "Unrestrained homosexual conduct leads to other antisocial activities" including group sex, sex with minors, violent tendencies, molestation, and criminality.⁽¹⁰⁹⁾

As one would expect in a brief with so many patently absurd premises, many of the assertions supporting these points were stated without authority or with "authorities" whose credibility is seriously suspect.⁽¹¹⁰⁾ The primary authority cited in the Rutherford Brief was Dr. Paul Cameron, a "researcher" whose credibility has been repeatedly criticized by a variety of sources, including two federal courts.⁽¹¹¹⁾

Interestingly, the Rutherford Brief is also indicative of the gender bias on the part of the opponents of gay and lesbian families.⁽¹¹²⁾ Almost all of the claims are about gay men.⁽¹¹³⁾ This is particularly true about the claims of promiscuity--claims which are often overstated, if not simply false.⁽¹¹⁴⁾ As noted above, even if these claims were true, they would have no direct relevance to the parental abilities of lesbians.⁽¹¹⁵⁾ The belief that heterosexism and homophobia are rooted in sexism is a point often argued by proponents of lesbian and gay rights.⁽¹¹⁶⁾ The amicus briefs of the supporters of the Florida adoption statute in Cox hardly attempted to disguise the sexism of their arguments. Noting that a "mom-and-dad family is the natural environment for child rearing, and is the foundation of civilization,"⁽¹¹⁷⁾ the Rutherford Brief asserted that families not based upon this model pose a threat to child development.⁽¹¹⁸⁾ The Rutherford Brief also argued the following:

It takes two opposite sex people to nurture and raise children properly until they can care for themselves. In terms of sexual development: Boys need fathers so they can develop their own sexual identity; they need mothers so they can learn how to interact with the opposite sex. Girls need mothers so they can learn what it is to be a woman; they need fathers so they know how to interact with the opposite sex.

. . . .

"Homosexuality . . . is fundamentally a problem of gender identity . . . ."⁽¹¹⁹⁾

It would be easy to dismiss the Rutherford Brief and the arguments it made as too ridiculous to take seriously; however, the arguments appear, either directly or indirectly, throughout family law cases dealing with gay and lesbian parents.⁽¹²⁰⁾ Furthermore, in Cox, the Florida Catholic Conference of Bishops submitted an amicus brief (Conference Brief) which cited, with approval, the Rutherford Brief and its questionable conclusions about homosexual behavior.⁽¹²¹⁾ The Conference Brief also expressed a concern, similar to the concerns expressed by other opponents of equality for gays and lesbians, that the permission to adopt children signals acceptance by society of homosexual conduct.⁽¹²²⁾ The Conference Brief asserted that the removal of the statutory prohibition could force the Church to withdraw from the adoption service area⁽¹²³⁾--an incongruous assertion since the Church participates in adoption services in the forty-eight states that do not have such a statutory prohibition.⁽¹²⁴⁾

B.  The Current Status of the Research on Gay and Lesbian Parents

The repetition of the myths asserted by opponents of gay and lesbian adoption persists in spite of overwhelming evidence to the contrary. As commentators have noted, the clash between evolving scientific understanding and the growing disagreement over the moral status of homosexuality has resulted in courts increasingly turning to expert witnesses for assistance in understanding the phenomenon.⁽¹²⁵⁾ One commentator, who conducted a statistical analysis of the utilization of social science research in appellate opinions, found frequent citation to social science studies in gay rights cases.⁽¹²⁶⁾ The rate of citation of social science studies was higher than in most other types of cases and comparable to other controversial issues such as the death penalty.⁽¹²⁷⁾ The reliance by the courts upon research from the social sciences is a result of a number of factors.⁽¹²⁸⁾ One important consideration may be the need to refer to social science literature when a judge fears that the result is counterintuitive to his or her own value system or that of society at large.⁽¹²⁹⁾ Utilization of such data, in order to avoid directly addressing the legal issues, has also been criticized.⁽¹³⁰⁾ Another reason for the high rate of social science citation is the attempt to address the conflicting or incomplete information the courts otherwise possess concerning the behavior of people and the effect of legal sanctions upon them.⁽¹³¹⁾ Citation to social science data should not be mistaken for a court's full understanding of it, however, because courts sometimes struggle to make sense of the research, or strain to ignore it.⁽¹³²⁾

Little research has been done specifically addressing the development of children adopted by gay or lesbian parents.⁽¹³³⁾ With the legal and social hostility toward such adoptions, it is not surprising that it is difficult to find sufficiently large numbers of subjects for such a study. The extent of discrimination faced by lesbians and gays in society also makes it difficult to identify and conduct surveys of the group.⁽¹³⁴⁾ Nevertheless, at least one of the leading psychological experts on the research concerning children in lesbian and gay families, Dr. Charlotte J. Patterson, believes that the research about children born to such parents is relevant in the adoption context.⁽¹³⁵⁾ In reviewing all of the research on children of lesbian and gay parents, Dr. Patterson found no evidence that the children in such households developed differently from children reared in heterosexual households.⁽¹³⁶⁾ In twelve studies involving more than three hundred children, none found that the children of gay and lesbian parents suffered the sexual identity problems which so often concern the courts.⁽¹³⁷⁾ In reviewing the studies concerning the personal development of children from lesbian and gay households, none of the twelve studies found differences in measures of self-esteem, problems of adjustment, or psychiatric disorders.⁽¹³⁸⁾ These studies have displaced older research on homosexuality that should be viewed with suspicion because most of this research was conducted on mental hospital patients or prisoners.⁽¹³⁹⁾

Dr. Patterson also noted that the research on the social relationships of children of lesbians and gays found no differences from children reared by heterosexual parents.⁽¹⁴⁰⁾ She also found that the majority of child sexual abuse is committed by heterosexual men, not lesbians and gays.⁽¹⁴¹⁾ Dr. Patterson notes that children from lesbian and gay families may in fact benefit from their experience in that they may have a greater appreciation for human diversity, an expanded view of gender roles, a greater sense of being wanted (because of the barriers gays and lesbians are willing to overcome in order to parent), and an appreciation for an equitable division of labor between parents (because lesbian and gay couples do not divide the childcare and household chores on the basis of gender roles).⁽¹⁴²⁾ In summary, none of the studies demonstrated any deleterious effects to children growing up in households with gay or lesbian parents.

Additionally, a growing number of professional organizations, including the American Bar Association (ABA), have recognized Dr. Patterson's findings and have formally opposed restrictions on custody and visitation by gays and lesbians.⁽¹⁴³⁾ The American Psychiatric Association declared in 1973 that homosexuality was no longer considered a mental illness.⁽¹⁴⁴⁾ The American Psychological Association has similarly passed measures and resolutions opposing discrimination against gays and lesbians, including the following measure concerning child custody: "The sex, gender identity, or sexual orientation of natural, or prospective adoptive or foster parents should not be the sole or primary variable considered in custody or placement cases."⁽¹⁴⁵⁾

The argument that children of gays and lesbians will be harassed by their peers may be the strongest argument against lesbians and gays who seek to adopt a child. However, the United States Supreme Court rejected a similar argument in a racial context in Palmore v. Sidoti.⁽¹⁴⁶⁾ The Court reversed the Florida Supreme Court, which had ordered a change in custody from a white mother who lived with, and later married, an African-American male.⁽¹⁴⁷⁾ A unanimous Court rejected the notion that the Florida court could give effect to the biases and prejudices of other people in violation of the Equal Protection Clause.⁽¹⁴⁸⁾

  The Legal Arguments for Permitting Adoption by Lesbians and Gays

A.  The Standards to Be Utilized

One of the weaknesses of the family law decisions involving lesbians and gays has been the failure of certain courts to articulate clearly the standards and presumptions underlying their determinations.⁽¹⁴⁹⁾ Professor Richard Delgado has noted that decisions involving the rights of homosexuals may involve facts, norms, or standards of review, but courts fail to distinguish clearly between these factors.⁽¹⁵⁰⁾ Professor Delgado notes that the courts' findings in this area may turn upon a full examination of the matrix of normative and factual issues and an application of a proper standard of review.⁽¹⁵¹⁾

The argument that these matters should be determined by the legislature simply ignores the role of the Constitution and the courts in upholding constitutional values.⁽¹⁵²⁾ Similarly, to condone discrimination against gays and lesbians merely because society has historically discriminated against this group ignores that society has discriminated against groups in the past, which it has eventually acknowledged was wrong.⁽¹⁵³⁾ Even if a certain activity is criticized by some segments of society, the state should not necessarily be given unlimited discretion to curtail this activity.⁽¹⁵⁴⁾ In addressing homosexuality, courts often neglect to consider these distinctions.

B.  Best Interests of the Child

Statutes and case law generally require that, in custody disputes between parents, the decision concerning placement should be made in the "best interests of the child."⁽¹⁵⁵⁾ The weight to be given to this factor also differs, however, depending upon the legal status of the custodial disputants. For instance, a biological parent is entitled to a presumption that must be overcome in order for someone else to obtain custody.⁽¹⁵⁶⁾ This standard is vague enough to leave considerable discretion to the trial courts to determine the appropriate placement for a child.⁽¹⁵⁷⁾ Such discretion can be troublesome when the court injects its own biases and values into the determination.⁽¹⁵⁸⁾ Some courts have held that a parent's homosexuality creates a presumption of parental unfitness for custody purposes.⁽¹⁵⁹⁾ Other courts have rejected such a presumption, although these courts will nevertheless consider evidence about the impact of the parent's sexual orientation upon the child.⁽¹⁶⁰⁾ Although courts sometimes place restrictions on the visitation rights of gay and lesbian parents, most have not completely forbidden visitation.⁽¹⁶¹⁾

Many legal commentators and advocates of gay and lesbian parents argue that courts should require a nexus between the parent's homosexuality and harm to the child.⁽¹⁶²⁾ Interestingly, one commentator has found that in cases requiring a nexus, the courts have utilized four times as "many citations and references to social science" research.⁽¹⁶³⁾ This should not be surprising since research indicates that the objections raised to gays and lesbians as parents are not supported by any credible research.⁽¹⁶⁴⁾ Advocates for gay and lesbian parents are also troubled by the attempts of some courts to make a distinction between homosexual orientation and homosexual conduct--the latter being considered more harmful than the former.⁽¹⁶⁵⁾ Courts that make such distinctions will sometimes permit gay and lesbian parents to retain parental rights as long as they do not engage in homosexual conduct.⁽¹⁶⁶⁾ This results in draconian restrictions on the lives of gays and lesbians.⁽¹⁶⁷⁾

When the custody dispute is between a parent and a non-parent, the courts purport to consider the best interests of the child and the rights of the natural parent.⁽¹⁶⁸⁾ Because of the strong constitutional rights of a natural parent,⁽¹⁶⁹⁾ a non-parent must demonstrate unfitness on the part of the natural parent before custody is removed from the natural parent.⁽¹⁷⁰⁾ Although there are few cases in which a parent has lost custody to a non-parent,⁽¹⁷¹⁾ Bottoms v. Bottoms⁽¹⁷²⁾ is a recent and notable exception.⁽¹⁷³⁾

In relation to the disputes between a biological mother and her partner, the judicial system's failure to permit second parent adoptions clearly hinders the best interests of children.⁽¹⁷⁴⁾ For inheritance and health insurance purposes, the treatment of a child as being that of the partner is clearly advantageous to the child.⁽¹⁷⁵⁾

C.  The Need for More Adoptive Homes

Commentators have noted the need for additional foster and adoptive homes, particularly for children who are more difficult to place than young, white children without disabilities.⁽¹⁷⁶⁾ Many of these difficult-to-adopt children end up in a series of foster homes or institutions, environments which lack stability.⁽¹⁷⁷⁾ One group of children presenting special challenges are gay and lesbian adolescents.⁽¹⁷⁸⁾ Because of ostracism and hostility from family and peers, an increasing number of gay and lesbian adolescents are in need of placement with caring adults.⁽¹⁷⁹⁾

Noting that there is a large number of hard-to-place children, and that there are gays and lesbians willing to adopt such children, does not mean that gays and lesbians should be limited to adopting only unwanted children. In fact, one commentator has criticized the stigmatization inherent in such a philosophy.⁽¹⁸⁰⁾ Nonetheless, it is the gay and lesbian community that has often stepped forward to care for these otherwise abandoned children. This has been particularly true with regard to HIV-positive children.⁽¹⁸¹⁾

  Stranger Adoptions and Constitutional Analysis

A.  The Florida Cases Concerning Homosexual Adoption

The cases concerning the Florida adoption statute⁽¹⁸²⁾ raise similar constitutional and policy arguments as those found in cases involving the rights of lesbians and gays in other areas of the law.⁽¹⁸³⁾ The case of Cox v. Florida Department of Health & Rehabilitative Services⁽¹⁸⁴⁾ made its way to the Florida Supreme Court, which ruled on two of the three constitutional claims brought by the petitioners,⁽¹⁸⁵⁾ but remanded the case to the trial court on the equal protection issue.⁽¹⁸⁶⁾ Other cases have also challenged the Florida statute. One trial court found the statute unconstitutional, but the decision was not appealed.⁽¹⁸⁷⁾ Currently, another case is challenging the statute at the trial court level.⁽¹⁸⁸⁾

Because Cox has been reviewed by the Florida Supreme Court, this section focuses on its decision as well as the decision of the intermediate court of appeal.⁽¹⁸⁹⁾ Although the case was brought pursuant to the Florida Constitution,⁽¹⁹⁰⁾ the court's analysis of the equal protection and substantive due process claims mirror the United States Supreme Court's analysis of the comparable provisions in the United States Constitution.⁽¹⁹¹⁾ Despite the fact that the Florida Supreme Court has stated that it is not bound to interpret its constitution in the same manner that the federal courts interpret the United States Constitution,⁽¹⁹²⁾ Cox is another example of state courts refusing to consider a state constitutional provision independently.⁽¹⁹³⁾ The Florida Supreme Court has stated that the United States Constitution establishes a "floor for basic freedoms," whereas the state constitution provides "the ceiling" with regard to analyzing rights under the respective constitutions.⁽¹⁹⁴⁾ Unfortunately for Cox, the court in this case left no vertical space in the room, since one cannot distinguish the difference between the floor and ceiling of constitutional rights in his claim.

B.  Florida's Adoption Statute

Although the Florida adoption statute lists groups of persons who may adopt in Florida,⁽¹⁹⁵⁾ the only persons categorically excluded are homosexuals.⁽¹⁹⁶⁾ The statute establishes a broad purpose: "to protect and promote the well-being of persons being adopted and their birth and adoptive parents and to provide to all children who can benefit by it a permanent family life, and, whenever possible, to maintain sibling groups."⁽¹⁹⁷⁾ The statutes also provide the normal protections of preliminary home studies⁽¹⁹⁸⁾ and complete investigations of the home.⁽¹⁹⁹⁾ Even persons appearing on the Abuse Registry or who have felony convictions are not categorically prohibited from adopting.⁽²⁰⁰⁾ New Hampshire is the only other state to statutorily bar homosexuals from adopting.⁽²⁰¹⁾

C.  The Procedural History of Cox v. Florida Department of Health & Rehabilitative Services

Petitioner James W. Cox and his partner, Rodney M. Jackman, sought to adopt a child in the Sarasota, Florida area.⁽²⁰²⁾ In March 1991, Cox attempted to register for parenting classes in order to adopt a special needs child, at which time he disclosed that he was gay.⁽²⁰³⁾ As a result of the disclosure of his homosexuality, Cox was informed by the Florida Department of Health and Rehabilitative Services that it would reject his application for the adoption of a child.⁽²⁰⁴⁾ After being informed of the Department's position, Cox sought declaratory and injunctive relief pursuant to the Florida Constitution's privacy, equal protection, and due process provisions.⁽²⁰⁵⁾ Pursuant to a stipulation by the parties, the case was resolved without an evidentiary hearing, and the court instead relied upon legal arguments and research submitted by the parties.⁽²⁰⁶⁾ The trial court ordered the parties to brief the legal issue of whether the statute was unconstitutionally vague.⁽²⁰⁷⁾ The trial court found that the statute violated the privacy, equal protection, and due process guarantees of the Florida Constitution.⁽²⁰⁸⁾ The Second District Court of Appeal reversed the trial court order, criticizing the stipulation that avoided trial of the evidentiary matters.⁽²⁰⁹⁾

In a per curiam opinion, the Florida Supreme Court upheld the rejection of the privacy and substantive due process claims,⁽²¹⁰⁾ but remanded the case to the trial court to consider the equal protection claim on a rational basis standard.⁽²¹¹⁾ The court provided no explanation for its affirmance of the District Court of Appeal on the due process and privacy claims. Justice Kogan, in his dissent, correctly questioned the court's failure to address that a statute with no lawful purpose for an equal protection claim is also violative of substantive due process.⁽²¹²⁾ Justice Kogan also noted that although the state justified its query of persons of their sexual orientation based upon their violation of section 800.02, Florida Statutes,⁽²¹³⁾ the state does not question heterosexuals about whether they violate this statute.⁽²¹⁴⁾ It should be noted that not all gays, lesbians, and bisexuals necessarily violate this vaguely worded criminal statute.⁽²¹⁵⁾

The State's attempts to support the policy of the statute demonstrate why the law lacks a rational basis. At the trial level, the State relied upon only two articles for support of its assertion that gays and lesbians should not be permitted to adopt.⁽²¹⁶⁾ One of these articles concluded that "[r]esults from the present study do suggest that being gay is not incompatible with effective parenting, and certainly not the major issue in parents' relationships with their children."⁽²¹⁷⁾ This conclusion indicates that the article is more supportive of the opponents of the statute, than of the State's arguments.

The other article cited by the State, which is the only one that could be nominally considered supportive of the State's position, is simply an exercise in speculation about the causes of homosexuality, with little relevance to the issues in this adoption case.⁽²¹⁸⁾ Its speculation is also sexist and unsupported by serious scientific research. In discussing various "theories" for homosexuality, the State's trial brief notes the following:

Rather than postulating genes directly linked with homosexuality as in the first three hypothesis [sic], this one suggests that masturbation may cause homosexuality. Thus, the male as part of normal heterosexual development, treads a fine line between heterosexuality and homosexuality.

This theory suggest [sic] that homosexuality is a function of adolescent masturbating.⁽²¹⁹⁾

In reviewing the article, this "theory" is actually one of four offered as sociobiological explanations of homosexuality, and is conceded to be one of pure speculation.⁽²²⁰⁾ The article also states the following:

Of course, it is notorious in our society that the stage (as do the arts generally) has a far higher proportion of homosexual participants than, say, the teaching profession. . . . (Indeed, there are cases of heterosexuals who behave homosexually for the sake of professional advancement within the theater.) . . . For instance, effeminate boys, a group with proportionately more future homosexual adults than average, "are unusually adept at stage-acting and role-taking--at an age long before they could know that the acting profession has an unusually high incidence of homosexuality."⁽²²¹⁾

The fact that the State would use an article with such blatant stereotyping as its major "support" speaks poorly for the State's rational basis argument.⁽²²²⁾

D.  Substantive Due Process and the Right to Privacy

As noted, the Florida Supreme Court rejected the substantive due process claim raised by Cox.⁽²²³⁾ This was in part due to the case which stands as a constant barrier to the advocates of gay and lesbian rights--Bowers v. Hardwick⁽²²⁴⁾--a case in which the United States Supreme Court rejected a claim that Georgia's sodomy law violated persons' right to privacy.⁽²²⁵⁾ Commentators have noted the tendency of courts to cite Bowers in order to reject the claims of lesbians and gays, even in cases in which substantive due process is not at issue.⁽²²⁶⁾ Moreover, the Bowers Court's failure to provide protection for homosexual conduct has influenced some of the decisions to differentiate between homosexual activity and sexual orientation.⁽²²⁷⁾

Nonetheless, the Bowers decision regarding the right to privacy under the United States Constitution does not prohibit states from interpreting their state constitutions to protect gays and lesbians.⁽²²⁸⁾ The Kentucky Supreme Court overruled the state's sodomy statute based on the Kentucky Constitution's provisions concerning privacy and equal protection.⁽²²⁹⁾ The Colorado Supreme Court has also found a fundamental right to participate equally in the political process when it overturned a ballot initiative that forbade local governments from passing legislation prohibiting discrimination against lesbians and gays.⁽²³⁰⁾

The Florida Supreme Court has established that its courts must independently consider the Florida Constitution's provisions giving "independent import" to every provision.⁽²³¹⁾ Florida amended its constitution in 1980 by adding an explicit right to privacy (Privacy Amendment).⁽²³²⁾ Prior to its decision in Cox, the Florida Supreme Court, in a case upholding the right of a minor to seek an abortion, had made it clear that the provision was intended to provide a broader protection than the right of privacy afforded by the United States Constitution.⁽²³³⁾ Accordingly, the Florida Constitution provides protection in "decision-making or autonomy zone of privacy interests of the individual[,]"⁽²³⁴⁾ as well as providing strict limits on the public disclosure of personal matters.⁽²³⁵⁾ One commentator, who reported on the history of the Privacy Amendment and testified before the Constitutional Revision Commission which proposed it, noted that homosexual activity could be covered by the amendment.⁽²³⁶⁾

Because of Cox's disclosure of his homosexuality,⁽²³⁷⁾ the District Court of Appeal determined that the Privacy Amendment was not an issue because it deemed his statement a "voluntary" disclosure.⁽²³⁸⁾ This conclusion fails to consider the non-disclosural aspects of privacy covered by Florida's Privacy Amendment.⁽²³⁹⁾ The Privacy Amendment has been construed to cover a broad range of personal matters, including: (1) family relationships; (2) marriage; (3) procreation;⁽²⁴⁰⁾ and (4) medical decisions.⁽²⁴¹⁾ Even prior to its passage, the court had held that governmental restriction of private morality was unlawful in the absence of a clear and convincing showing that there was a substantial connection between the public interest and the regulated activity.⁽²⁴²⁾ The Florida Supreme Court reiterated this strong autonomy zone principle in a subsequent case.⁽²⁴³⁾ Prior to the Cox I decision, a number of Florida trial courts had held that the Privacy Amendment protected matters related to sexual orientation.⁽²⁴⁴⁾ The Court of Appeal found that the statute did not violate Cox's privacy,⁽²⁴⁵⁾ but instead found that the statute denied him a privilege based upon his sexual orientation.⁽²⁴⁶⁾ This reasoning has been rejected in other cases in which the government has conditioned access to privileges or benefits upon relinquishment of, or infringement upon, a constitutional right.⁽²⁴⁷⁾

E.  The Due Process Vagueness Problem--Sexual Orientation as Identity

Perhaps the most confusing aspect of court decisions concerning homosexuality is the discussion of how to classify persons who engage in homosexual conduct.⁽²⁴⁸⁾ The dichotomy between homosexual conduct and homosexuality as identity is one that courts have attempted to enforce and one that has sometimes been argued by lesbian and gay advocates.⁽²⁴⁹⁾ Many advocates and commentators, however, have found this dichotomy to be illusory or false.⁽²⁵⁰⁾ It is this confusion which leads to some of the problems in the due process and equal protection analyses attempted by the courts.⁽²⁵¹⁾ Thus, homosexuals have been defined as those persons who engage in "`physical sexual activity, interpersonal affection, and erotic fantasies'" with other persons of the same gender.⁽²⁵²⁾ There are men and women who are heterosexually married, but who fit into this definition of "homosexual."⁽²⁵³⁾ That is, there are persons who are sexually active with members of their own gender, yet are married to persons of the opposite sex.⁽²⁵⁴⁾ There are others who remain in a monogamous heterosexual marriage, but whose attractions and desires identify them with the homosexual class.⁽²⁵⁵⁾ Some of these persons have openly acknowledged their feelings or actions,⁽²⁵⁶⁾ while others have not.⁽²⁵⁷⁾ Thus, labelling persons "homosexual" is not always based on clear-cut definitions.

It has also been argued that there is a separate lesbian and gay culture or cultures.⁽²⁵⁸⁾ Others would contend that there is no particular culture to which all gays and lesbians belong.⁽²⁵⁹⁾ Even if there is a lesbian or gay subculture that is disavowed by some lesbians and gays,⁽²⁶⁰⁾ the validity of the subculture is not negated.⁽²⁶¹⁾ It is possible to have diversity within a culture so long as the group has distinct characteristics separate from other ethnic groups.⁽²⁶²⁾

In arguing that the homosexual label should have been applied in his case, Cox could not have raised the claim that the statute was unconstitutionally vague because he had admitted that he was gay.⁽²⁶³⁾ Nonetheless, it can be argued that the Florida adoption statute is vague and ambiguous.⁽²⁶⁴⁾

The United States Supreme Court has held that individuals must be given fair notice of prohibited conduct.⁽²⁶⁵⁾ The Florida Supreme Court has held similarly.⁽²⁶⁶⁾ Nowhere does the Florida adoption statute define the term "homosexual."⁽²⁶⁷⁾ The District Court of Appeal accepted this definition offered by the state during the litigation: "applicants who are known to engage in current, voluntary homosexual activity."⁽²⁶⁸⁾ Although courts have ruled that the vagueness standard is less stringent when the statute is not criminal,⁽²⁶⁹⁾ it is still necessary "to give adequate notice of what conduct is prohibited by the statute and to provide clarity sufficient to avoid arbitrary and discriminatory enforcement."⁽²⁷⁰⁾ The confusion exhibited by courts in defining those persons who fit within the class of "homosexuals" has been noted by other commentators.⁽²⁷¹⁾ The District Court in Cox failed to discuss how the purported "definition" should be applied. What is current? What is "homosexual activity"--does it apply only to genital sex or does it encompass kissing and hugging? If a person stops engaging in homosexual activity, is he or she no longer homosexual? If so, how long must he or she stop before he or she is no longer deemed homosexual?

F.  Equal Protection

As is now familiar to anyone conversant in constitutional law, the United States Supreme Court has developed three levels of judicial review of classifications pursuant to the Equal Protection Clause: (1) rational basis;⁽²⁷²⁾ (2) intermediate scrutiny;⁽²⁷³⁾ and (3) strict scrutiny.⁽²⁷⁴⁾ Although gays and lesbians have not yet been determined to be a suspect class by most courts,⁽²⁷⁵⁾ there are some lower courts which have held that a suspect or quasi-suspect class status should be applied.⁽²⁷⁶⁾

Some commentators also argue that more than mere rational basis review should apply to classifications based upon sexual orientation⁽²⁷⁷⁾ with at least one commentator maintaining that sexual orientation constitutes an ethnic status.⁽²⁷⁸⁾ Others have argued that the rational basis standard should be sufficient to overturn sexual orientation classifications.⁽²⁷⁹⁾

Several states' high courts have applied varying degrees of review when addressing deprivations of rights based on gender or sexual orientation.⁽²⁸⁰⁾ As noted above, the Kentucky Supreme Court found that a state sodomy statute violated the equal protection clause of the Kentucky Constitution.⁽²⁸¹⁾ The California Supreme Court, using a rational basis analysis in interpreting its constitution, found that a public utility could not arbitrarily deny employment opportunities to qualified homosexuals.⁽²⁸²⁾ Furthermore, the Supreme Court of Hawaii, applying a strict scrutiny analysis, found an equal protection violation of its state constitution, based upon gender, in the denial of same-gender marriages.⁽²⁸³⁾

Similar to federal constitutional analysis, Florida courts also require that state classifications bear at least a rational relationship to the interest protected by the state.⁽²⁸⁴⁾ Nevertheless, the District Court of Appeal failed to provide a valid rational basis for its decision in Cox.⁽²⁸⁵⁾ After criticizing the parties for failing to offer evidence at trial concerning the allegations about the effects of homosexuality on children,⁽²⁸⁶⁾ the District Court of Appeal in Cox posited its own hypothesis based upon naked speculation and without any evidentiary support from the record.⁽²⁸⁷⁾ The court's reliance upon its own prejudices reflected those of the Florida legislature when it passed the statute.⁽²⁸⁸⁾ There was very little debate concerning the passage of this statute, but during the brief discussion, one senator noted that no evidence had been placed on the record that any problem existed in Florida concerning adoption by homosexuals; no other legislator disputed this claim.⁽²⁸⁹⁾ In spite of the lack of evidence supporting the legislation, the District Court of Appeal cited Heller v. Doe⁽²⁹⁰⁾ to justify its rational basis review.⁽²⁹¹⁾ The court's reading of Heller is too narrow.⁽²⁹²⁾ Other courts have overturned actions upon a rational basis standard even after the Heller decision.⁽²⁹³⁾ To simply accept the judgment of the legislature on moral issues also ignores the role of the courts in constitutional jurisprudence.⁽²⁹⁴⁾

Commentators have argued that discrimination on the basis of sexual orientation is unconstitutional.⁽²⁹⁵⁾ While some contend that it is simply a form of gender discrimination based upon the gender of one's partner,⁽²⁹⁶⁾ it has also been argued that gays and lesbians are a suspect class based upon First Amendment principles.⁽²⁹⁷⁾ The issue of whether gays and lesbians meet the criteria of a suspect class has been discussed by a number of commentators.⁽²⁹⁸⁾

One commentator has argued that the denial of the right of a gay or lesbian co-parent to adopt his or her partner's biological children constitutes a violation of equal protection of the children.⁽²⁹⁹⁾ It can also be argued that those children who are candidates for "stranger adoptions" may suffer a denial of equal protection or due process if they are prevented from obtaining adoptive parents. The statements by courts regarding concern about protecting children from theoretical harm ignores the real harm inflicted upon the children of Florida by the state's unwillingness to provide appropriate services to its children.⁽³⁰⁰⁾ Instead of addressing the real needs of its children, the state speculates about "protecting" children from being adopted by qualified individuals, in spite of the knowledge that some of these children will never be adopted if the gay and lesbian applicants are denied the opportunity to do so.⁽³⁰¹⁾

It cannot be under-emphasized that the categorization of persons covered by this statute is central to understanding its rationality. The state's definition of sexual orientation defines a person's sexual orientation by the gender of the person with whom the applicant is engaged in a sexual relationship at the time of the application--"to applicants who are known to engage in current, voluntary homosexual activity."⁽³⁰²⁾ Not only is this "snapshot" approach irrelevant to the parenting skills of the person, but it also fails to accurately describe a person's sexual orientation over a lifetime--the relevant time period for someone seeking to be a parent. Studies have shown that even persons engaged in homosexual activity may be married at the time of the activities and not identify themselves as homosexual.⁽³⁰³⁾ There are also some lesbians or gays who are not sexually active with anyone.⁽³⁰⁴⁾

A person who was involved in a heterosexual relationship at the time of application, but became intimate with a person of the same gender shortly after the application was approved, would probably be permitted to remain an adoptive parent.⁽³⁰⁵⁾ Under such a scenario, would the purported harm to the child be avoided?

The Florida statute and its application show the patent absurdity of the homosexual conduct/orientation distinction in family law.⁽³⁰⁶⁾ Parenting is a life-long relationship. Making permanent decisions at a particular point of a person's life based upon that person's perceived sexual orientation makes little sense in family law. The absurdity of this statute is further exemplified by Florida's willingness to allow "homosexuals" to be foster parents in some counties.⁽³⁰⁷⁾ Further, the same District Court of Appeal which upheld the adoption statute, overturned a Florida Department of Health and Rehabilitative Services rule that forbade lesbian and gay applicants from becoming foster parents.⁽³⁰⁸⁾

G.  Future Florida Litigation

Although remanded to the trial court, due to Cox's voluntary dismissal, the Cox trial will not proceed. Weary from the delays and harassment which Cox and his partner had encountered during the litigation, he decided to allow someone else to bear the burden of challenging this statute.⁽³⁰⁹⁾ Nonetheless, a similar case is pending at the trial court level. A lesbian, who is also a biological mother, is challenging the statute in Broward County, Florida.⁽³¹⁰⁾ It is anticipated that the trial will occur during August 1996.⁽³¹¹⁾ There are also other gays and lesbians who are willing to challenge this law.⁽³¹²⁾ It is, therefore, likely that the Florida Supreme Court will eventually be faced with another opportunity to rule on the equal protection aspects of this case.

  Conclusion

Although gays and lesbians are increasingly winning cases in a variety of areas, including family law, courts still resist recognizing the scientific evidence and society's changing mores.⁽³¹³⁾ Family law is one of the areas in which the courts are most reluctant to change, although it is also one of the areas in which litigation concerning lesbians and gays is occurring most often. The Florida decisions about the state's adoption statute reflect the confusion courts have about sexual orientation.⁽³¹⁴⁾

Different issues arise in co-parent and stranger adoptions.⁽³¹⁵⁾ In co-parent adoptions, the biological mother has constitutional rights recognized by the courts, although some courts do not recognize the rights of lesbian mothers to choose who will be the child's second parent. Applicants in stranger adoptions may lack constitutional protection, but the children without parents--the children most in need of a broader recognition of adoptive rights--are having their best interests circumvented by the courts. The failure of the Florida Supreme Court in Cox to overturn the Florida adoption statute in light of the scientific evidence, while children who await adoption remain in foster care, flagrantly disregards the best interests of the child, which the state is supposed to uphold.⁽³¹⁶⁾ The failure to understand homosexuality underlies these decisions.⁽³¹⁷⁾ Perhaps when the next case proceeds to the Florida Supreme Court, the court will determine who should be an adoptive parent on a case-by-case basis, and will put an end to the categorical exclusions based upon stereotypes and myths.

* Associate Professor of Law, Shepard Broad Law Center, Nova Southeastern University; A.B., Indiana University, 1975; J.D., Indiana University, 1978. Professor Adams is presently co-counsel in the case of Amer v. Florida Department of Health & Rehabilitation Services, which challenges the constitutionality of Florida's ban on homosexuals adopting children.

1. A number of commentators have commented on the terms to be utilized to refer to persons who engage in homosexual behavior. See, e.g., Rhonda R. Rivera, Queer Law: Sexual Orientation Law in the Mid-Eighties--Part I, 10 U. Dayton L. Rev. 459, 463-64 (1985). For purposes of this Article, except where otherwise indicated, "homosexual" will refer to persons engaging in homosexual behavior. Although "gay" has generally been used to define both males and females who identify themselves as having a sexual and emotional attraction toward persons of the same gender, the term is increasingly used to refer to gay men only. "Lesbian" is used to refer to women whose sexual and emotional orientation is toward other women. Although the discriminatory treatment discussed in this Article also affects bisexual persons, it is generally applied to them for their homosexual behavior and therefore reference to gays and lesbians is meant to include bisexual persons. I have consciously chosen to include emotional orientation as well as sexual orientation to define lesbians and gays because of the constant confusion by courts and others to define us as persons driven solely by our sexual instincts. Such treatment ignores that it is the choice of whom we love and with whom we wish to develop meaningful relationships that distinguish us as a separate group within society. Others have commented on the irrational tendency to view lesbians and gays as living in the "erotic" realm as though our sexual orientation has overwhelmed all other aspects of our personality and character. See, e.g., Felicia E. Lucious, Note, Adoption of Tammy: Should Homosexuals Adopt Children?, 21 S.U. L. Rev. 171, 178-82 (1994).

2. See, e.g., Hembree v. Hembree, 660 So. 2d 1342 (Ala. Civ. App. 1995); S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); In re Appeal in Pima County Juvenile Action B-10489, 727 P.2d 830 (Ariz. Ct. App. 1986); In re Marriage of Birdsall, 243 Cal. Rptr. 287 (Ct. App. 1988); Chaffin v. Frye, 119 Cal. Rptr. 22 (Ct. App. 1975); Nadler v. Superior Court, 63 Cal. Rptr. 352 (Ct. App. 1967); Christian v. Randall, 516 P.2d 132, 133-34 (Colo. Ct. App. 1973); In re M.M.D. & B.H.M., 662 A.2d 837 (D.C. 1995); Cox v. Florida Dep't of Health & Rehabilitative Servs., 656 So. 2d 902 (Fla. 1995); Music v. Rachford, 654 So. 2d 1234 (Fla. Dist. Ct. App. 1995) (per curiam); Meeks v. Garver, 598 So. 2d 261 (Fla. Dist. Ct. App. 1992); Seebol v. Farie, 17 Fam. L. Rep. (BNA) 1331 (Fla. Cir. Ct. 1991); In re K.M. & D.M., 653 N.E.2d 888 (Ill. App. Ct. 1995); D.H. v. J.H., 418 N.E.2d 286 (Ind. Ct. App. 1981); Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993); Doe v. Doe, 16 Mass. App. Ct. 499, 452 N.E.2d 293 (1983); McGuffin v. Overton, 542 N.W.2d 288 (Mich. Ct. App. 1995) (per curiam); Hall v. Hall, 291 N.W.2d 143 (Mich. Ct. App. 1980); J.L.P.(H.) v. D.J.P., 643 S.W.2d 865 (Mo. Ct. App. 1982); L. v. D., 630 S.W.2d 240 (Mo. Ct. App. 1982); In re J.S. & C., 324 A.2d 90 (N.J. Super. Ct. Ch. Div. 1974), aff'd, 362 A.2d 254 (N.J. Super. Ct. App. Div. 1976); Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991); In re Adoption of Robert Paul P., 471 N.E.2d 424 (N.Y. 1984); Guinan v. Guinan, 477 N.Y.S.2d 830 (1984); Newsome v. Newsome, 256 S.E.2d 849 (N.C. Ct. App. 1979); Jacobson v. Jacobson, 314 N.W.2d 78 (N.D. 1981); In re Adoption of Charles B., 552 N.E.2d 884 (Ohio 1990); Roberts v. Roberts, 489 N.E.2d 1067, 1070 (Ohio Ct. App. 1985); M.J.P. v. J.G.P., 640 P.2d 966 (Okla. 1982); A. v. A., 514 P.2d 358 (Or. Ct. App. 1973); Stroman v. Williams, 353 S.E.2d 704 (S.C. Ct. App. 1987); In re Michael Lee Parsons, No. 02A01-9403-JV-0037, 1995 WL 442587 (Tenn. Ct. App. July 27, 1995); Dailey v. Dailey, 635 S.W.2d 391 (Tenn. Ct. App. 1981); Kallas v. Kallas, 614 P.2d 641 (Utah 1980); Medeiros v. Medeiros, 8 Fam. L. Rep. (BNA) 2372 (Vt. Super. Ct. 1982); Roe v. Roe, 324 S.E.2d 691, 694 (Va. 1985); In re Marriage of Cabalquinto, 669 P.2d 886, 888 (Wash. 1983); Rowsey v. Rowsey, 329 S.E.2d 57, 60-61 (W. Va. 1985); In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis.), cert. denied, 116 S. Ct. 475 (1995); In re Angel Lace M., 516 N.W.2d 678 (Wis. 1994).

3. For comments on the growing political strength and visibility of lesbians and gays, see Bettina Boxall, Lesbian Group Eager to Carve Niche in Gay Rights Movement, Houston Chron., Jan. 2, 1994, at 1; Michael Dorgan, Gays' Growing Clout Helps Decide Elections, L.A. Daily News, Apr. 27, 1992, at N3; Gay Leaders See Positive Side to Attacks, Las Vegas Rev.-J., Apr. 19, 1992, at 14B ("Even gay bashings, some say, can be viewed as an unfortunate indicator of the political and social advances of openly gay and lesbian Californians."); Shaun McKinnon, Gay Activists Work Against Sodomy Law, Las Vegas Rev.-J., June 14, 1992, at 1A ("The number of gay-owned businesses is a good barometer of the strength of the gay and lesbian community . . . ."); Torie Osborn, America Without Closets, S.F. Chron., Nov. 2, 1993, at A19; Grant Parsons, Up and Out Durham's Gay and Lesbian Culture Has Come of Age, News & Observer, Dec. 1, 1993, at D1; Delia M. Rios, Building a Powerhouse: Fundraising Prowess, Experienced Leadership Earn Dallas Gays National Clout, Dallas Morning News, July 11, 1993, at 1A; Steve Toloken, Gays in Politics/Candidates Become More Sophisticated in Fundraising, Houston Chron., Jan. 19, 1992, at 16.

4. See infra part II.A.1-2.

5. See, e.g., Adoption of Tammy, 416 Mass. 205, 207, 619 N.E.2d 315, 316 (1993). For a discussion of artificial insemination, see generally Anne R. Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80 Iowa L. Rev. 265 (1995).

6. See Schiff, supra note 5, at 286-89.

7. For a discussion on co-parenting, see infra part II.C.2.

8. See Schiff, supra note 5, at 286-89.

9. Brad Gooch, My Two Dads, Out Mag., Feb. 1996, at 90, 93; see also Sally Jacobs, More Gay Men Hearing the Call of Fatherhood, Boston Globe, Sept. 28, 1992, at 1.

10. Nan D. Hunter & Nancy D. Polikoff, Custody Rights of Lesbian Mothers: Legal Theory and Litigation Strategy, 25 Buff. L. Rev. 691, 691 (1976).

11. Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025, 1026 (1992).

12. See, e.g., G.A. v. D.A., 745 S.W.2d 726, 728 (Mo. Ct. App. 1987); N.K.M. v. L.E.M., 606 S.W.2d 179, 186 (Mo. Ct. App. 1980); Roe v. Roe, 324 S.E.2d 691, 694 (Va. 1985); see also Myra G. Sencer, Note, Adoption in the Non-Traditional Family--A Look at Some Alternatives, 16 Hofstra L. Rev. 191, 201-07 (1987).

13. See Fla. Stat. Ann. § 63.042 (West 1985); N.H. Rev. Stat. Ann. § 170-B:4 (1994).

14. In this Article, "family law" refers to guardianship, adoption, dissolution of marriage, and related proceedings where an adult seeks visitation or custodial rights to children.

15. These myths about homosexuality distort the treatment of gays and lesbians in all areas of the law. The historical treatment of lesbians and gays by the courts is reviewed in a series of articles by Professor Rhonda Rivera. See generally Rhonda R. Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J. 799 (1979) [hereinafter Rivera, Our Straight-Laced Judges]; Rhonda R. Rivera, Recent Developments in Sexual Preference Law, 30 Drake L. Rev. 311 (1980-1981); Rivera, supra note 1. It is the conclusion of Professor Rivera that, "the common denominator in these cases is that the sexual orientation of the individual involved has become dispositive of the outcome of the legal dispute." Rivera, supra note 1, at 461. Although gays and lesbians are increasingly winning court cases, there are cases which demonstrate that this bias continues. See supra notes 4-12 and accompanying text.

16. "Homophobia" is defined as an "aversion to gay or homosexual people or their lifestyle or culture." The American Heritage Dictionary of the English Language 867 (3d ed. 1992).

17. "Heterosexism" has been described as an "ideological system that denies, denigrates, and stigmatizes any non-heterosexual form of behavior, identity, relationship, or community[,]" and "is manifested in societal customs and institutions, such as religion and the legal system." George A. Appleby, AIDS and Homophobia/Heterosexism, 2 J. Gay & Lesbian Soc. Servs. 1, 4-5 (1995).

18. See infra notes 107, 129 and accompanying text.

19. See generally Julia F. Davies, Note, Two Moms and a Baby: Protecting the Nontraditional Family Through Second Parent Adoptions, 29 New Eng. L. Rev. 1055 (1995).

20. Some commentators have noted that a gay man may face a "double closet" because he is shunned by the dominant culture for his homosexuality and by the gay subculture for desiring to be a father. See, e.g., Marla J. Hollandsworth, Gay Men Creating Families Through Surro-Gay Arrangements: A Paradigm for Reproductive Freedom, 3 Am. U. J. Gender & L. 183, 193-95 (1995); Steve Susoeff, Comment, Assessing Children's Best Interests When a Parent is Gay or Lesbian: Toward a Rational Custody Standard, 32 UCLA L. Rev. 852, 875 (1985). Professor Hollandsworth has noted that gay men who become parents step out of the traditional role of father by becoming the primary caretaker, thus assuming a maternal role. Hollandsworth, supra, at 192. They thus challenge traditional gender roles in taking this step. See id. Whether the gay community still feels this way, or the extent to which it once did, is a matter of debate, but it is arguable that an increasing number of gay men are interested in becoming fathers. Id. at 195-96; see also Jacobs, supra note 9, at 1.

21. See, e.g., In re Adoption of Robert Paul P., 471 N.E.2d 424 (N.Y. 1984).

22. See Florida Dep't of Health & Rehabilitative Servs. v. Cox, 627 So. 2d 1210 (Fla. Dist. Ct. App. 1993), review granted, 637 So. 2d 234 (Fla. 1994), and approved in part, quashed in part, 656 So. 2d 902 (Fla. 1995).

23. See, e.g., Roe v. Roe, 324 S.E.2d 691, 694 (Va. 1985) (removing custody from equally fit father to mother because "father's continuous exposure of the child to his immoral and illicit relationship renders him an unfit and improper custodian as a matter of law").

24. See, e.g., Jacobson v. Jacobson, 314 N.W.2d 78, 80-81 (N.D. 1981); M.J.P. v. J.G.P., 640 P.2d 966, 969 (Okla. 1982); Dailey v. Dailey, 635 S.W.2d 391, 394 (Tenn. Ct. App. 1981).

25. See, e.g., J.L.P.(H.) v. D.J.P., 643 S.W.2d 865, 871-72 (Mo. Ct. App. 1982); Dailey, 635 S.W.2d at 394.

26. See, e.g., Chaffin v. Frye, 119 Cal. Rptr. 22, 26 (Ct. App. 1975); Hall v. Hall, 291 N.W.2d 143, 144 (Mich. Ct. App. 1980); Roberts v. Roberts, 489 N.E.2d 1067, 1070 (Ohio Ct. App. 1985); M.J.P. v. J.G.P., 640 P.2d 966, 969 (Okla. 1982); Kallas v. Kallas, 614 P.2d 641, 643 (Utah 1980); Roe, 324 S.E.2d at 693.

27. In re Appeal in Pima County Juvenile Action B-10489, 727 P.2d 830, 835 (Ariz. Ct. App. 1986) ("It would be anomalous for the state on the one hand to declare homosexual conduct unlawful and on the other create a parent after that proscribed model, in effect approving that standard, inimical to the natural family, as head of a state-created family.").

28. Id. at 837 (inquiring whether appellant's interest in children included an unnatural or abnormal sexual interest or intent).

29. See J.L.P.(H.), 643 S.W.2d at 869; see also Newsome v. Newsome, 256 S.E.2d 849, 851 (N.C. Ct. App. 1979).

30. Hunter & Polikoff, supra note 10, at 699.

31. See, e.g., Gilbert Zicklin, Deconstructing Legal Rationality: The Case of Lesbian and Gay Family Relationships, 21 Marriage & Fam. Rev. 55, 58 (1995); Joseph G. Arsenault, Comment, "Family" But Not "Parent": The Same-Sex Coupling Jurisprudence of the New York Court of Appeals, 58 Alb. L. Rev. 813, 816 n.21 (1995).

32. See generally Alexa E. King, Solomon Revisited: Assigning Parenthood in the Context of Collaborative Reproduction, 5 UCLA Women's L.J. 329 (1995); Ruthann Robson, Third Parties and the Third Sex: Child Custody and Lesbian Legal Theory, 26 Conn. L. Rev. 1377 (1994); Comment, Burdens on Gay Litigants and Bias in the Court System: Homosexual Panic, Child Custody, and Anonymous Parties, 19 Harv. C.R.-C.L. L. Rev. 497 (1984); Lisa M. Pooley, Note, Heterosexism and Children's Best Interests: Conflicting Concepts in Nancy S. v. Michele G., 27 U.S.F. L. Rev. 477 (1993); David M. Rosenblum, Comment, Custody Rights of Gay and Lesbian Parents, 36 Vill. L. Rev. 1665 (1991).

33. See, e.g., In re Custody of H.S.H.-K., 533 N.W.2d 419, 421-22 (Wis.), cert. denied, 116 S. Ct. 475 (1995). In H.S.H.-K., the Supreme Court of Wisconsin ruled that, although the relationship had ended, Sandra Lynne Holtzman was entitled to visitation of the child borne by her partner, Elsbeth Knott. Id. at 437. The biological mother asserted her parental rights to try to thwart the efforts of her former partner to visit the child. Id. at 422. Compare Alison D. v. Virginia M., 572 N.E.2d 27, 29-30 (N.Y. 1991), which denied standing to the former life-partner of the biological mother in a request for visitation to a child whom the couple had agreed to rear together. The Alison D. court referred to the petitioner, who had participated in the planning of the birth and shared in the parenting of the child, as "a biological stranger." Id. at 28. What makes this case more disappointing to advocates of lesbian and gay parents is that the Court of Appeals of New York had previously recognized that a gay man was a family member of his deceased life-partner under a rent-control statute. Braschi v. Stahl Assocs., 543 N.E.2d 49, 54-55 (N.Y. 1989).

34. See, e.g., Stephanie Mencimer, Local Courts: Handling Turmoil, Legal Times, Dec. 26, 1994, at 13.

35. McGuffin v. Overton, 542 N.W.2d 288 (Mich. Ct. App. 1995) (per curiam).

36. Id. at 289-90.

37. Id. at 292.

38. Id. at 289 & n.1.

39. Id. at 289.

40. McGuffin, 542 N.W.2d at 289.

41. Id.

42. Id. at 289-90.

43. Id.

44. Id. at 291.

45. Mich. Stat. Ann. § 25.312(6c) (Callaghan Supp. 1995).

A third person may bring an action for custody of a child if the court finds either of the following:

(a) Both of the following:

(i) The child was placed for adoption with the third person under the adoption laws of this or another state, and the placement order is still in effect at the time the action is filed.

(ii) After the placement, the child has resided with the third person for a minimum of 6 months.

(b) All of the following:

(i) The child's biological parents have never been married to one another.

(ii) The child's parent who has custody of the child dies or is missing and the other parent has not been granted legal custody under court order.

(iii) The third person is related to the child within the fifth degree by marriage, blood, or adoption.Id.

46. Music v. Rachford, 654 So. 2d 1234 (Fla. Dist. Ct. App. 1995) (per curiam).

47. Id. at 1235.

48. Id. at 1234.

49. Id.

50. Id. at 1235 (citing Meeks v. Garver, 598 So. 2d 261 (Fla. Dist. Ct. App. 1992)).

51. See infra notes 166-67 and accompanying text.

52. In re Michael Lee Parsons, No. 02A01-9403-JV-0037, 1995 WL 442587, at *6 (Tenn. Ct. App. July 27, 1995).

53. Id. at *5.

54. See infra notes 165-67 and accompanying text.

55. Hembree v. Hembree, 660 So. 2d 1342 (Ala. Civ. App. 1995).

56. Id. at 1344-45.

57. See id.

58. Id. at 1345.

59. See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (recognizing due process and equal protection rights of unwed father); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (holding that right to custody, care, and nurturing of child resides with parents); Pierce v. Society of Sisters, 268 U.S. 510, 518 (1924) (holding that right to provide intellectual and religious guidance to child is a substantial part of parent's liberty and freedom); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (recognizing as an essential liberty interest the right to conceive and raise children).

60. See infra notes 155-61 and accompanying text.

61. See, e.g., Florida Dep't of Health & Rehabilitative Servs. v. Cox, 627 So. 2d 1210, 1216 (Fla. Dist. Ct. App. 1993) (citing Hamilton v. Beard, 490 So. 2d 1297 (Fla. Dist. Ct. App. 1986); 2 C.J.S. Adoption of Persons § 3 (1972)), review granted, 637 So. 2d 234 (Fla. 1994), and approved in part, quashed in part, 656 So. 2d 902 (Fla. 1995).

62. In re Angel Lace M., 516 N.W.2d 678, 685-86 (Wis. 1994) (rejecting federal due process and equal protection arguments by lesbian partner of adoptive parent in attempt to establish a co-parent adoption); Opinion of the Justices, 530 A.2d 21, 24-25 (N.H. 1987) (stating that statute completely banning homosexual adoption did not violate state or federal equal protection or due process constitutional provisions).

63. Joseph Evall, Sexual Orientation and Adoptive Matching, 25 Fam. L.Q. 347 (1991).

64. Id. at 349; see also 1851 Mass. Acts 324, §§ 1-8.

65. Evall, supra note 63, at 350.

66. Developments in the Law--Sexual Orientation and the Law, 102 Harv. L. Rev. 1508, 1643 (1989) [hereinafter Sexual Orientation].

67. Evall, supra note 63, at 350-51.

68. Hollandsworth, supra note 20, at 197 (citing Christine A. Adames, There Are Babies to Adopt 166-67 (1987)); id. at 199 (citing Hayden Curry & Denis Clifford, A Legal Guide for Lesbian and Gay Couples 7:20-7:21 (Robin Leonard ed., 5th ed. 1989)).

69. Deborah Lashman, Second Parent Adoption: A Personal Perspective, 2 Duke J. Gender L. & Pol'y 227 (1995). Ms. Lashman is the one of the lesbian parents in the adoption case of In re Adoptions of B.L.V.B. & E.L.V.B., 628 A.2d 1271 (Vt. 1993). Ms. Lashman described explaining to the social worker who conducted the home study that she and her partner could not file a joint tax return. Lashman, supra, at 229. Lashman also described explaining to the judge why the children would not be eligible for social security benefits from the non-biological mother if the adoption were not granted. Id.

70. Charlotte J. Patterson, Adoption of Minor Children by Lesbian and Gay Adults: A Social Science Perspective, 2 Duke J. Gender L. & Pol'y 191, 195 (1995).

71. Id.; see also id. at 195 n.22.

72. See infra part V.A.

73. Fla. Stat. Ann. § 63.042(3) (West 1985); N.H. Rev. Stat. Ann. § 170-B:4 (1994).

74. Evall, supra note 63, at 352-53 (citing Kay Longcope, Foster-Care Ban on Gays Is Reversed, Boston Globe, Apr. 5, 1990, at 1).

75. Seebol v. Farie, 17 Fam. L. Rep. (BNA) 1331 (16th Cir. Ct. Fla. 1991), reprinted in State Dep't of Health & Rehabilitative Servs. v. Cox, 627 So. 2d 1210, 1221-29 (Fla. Dist. Ct. App. 1993).

76. Cox v. Florida Dep't of Health & Rehabilitative Servs., 656 So. 2d 902, 903 (Fla. 1995).

77. See Evall, supra note 63, at 355 n.46, for discussion of an unreported case in which a New York court granted a motion to vacate an adoption where the gay petitioner did not reveal his homosexuality or the fact that his lover lived in the adoptive home.

78. In re Adoption of Charles B., 552 N.E.2d 884, 889-90 (Ohio 1990).

79. In re Adoption of Charles B., No. 3382, 1988 WL 119937, at *1 (Ohio Ct. App. Oct. 28, 1988), rev'd, 552 N.E.2d 884, 889-90 (Ohio 1990).

80. Massachusetts at one time banned foster care by gay men and lesbians, and Nebraska's Department of Social Services placed a ban on foster parenting by lesbians and gay men in 1995. Gooch, supra note 9, at 93. Some child welfare departments in Florida also attempted to ban foster care arrangements with lesbians and gays, but the ban was overturned by an appellate court because of a failure to follow the appropriate administrative procedures in implementing the policy. See infra note 309 and accompanying text.

81. The term "life-partner" will be used in this Article to refer to either of the members of a gay or lesbian couple in a committed, long-term relationship.

82. See, e.g., Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993); In re Adoptions of B.L.V.B. & E.L.V.B., 628 A.2d 1271 (Vt. 1993).

83. Suzanne Bryant, Second Parent Adoption: A Model Brief, 2 Duke J. Gender L. & Pol'y 233, 239 (1995).

84. Id.

85. Id. at 240-41.

86. See, e.g., Nancy D. Polikoff, This Child Does Not Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459, 527-33 (1990).

87. Sexual Orientation, supra note 66, at 1655.

88. Bryant, supra note 83, at 237 n.27.

89. Patterson, supra note 70, at 196 n.24 (citing Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993); In re Adoptions of B.L.V.B. & E.L.V.B., 628 A.2d 1271 (Vt. 1993) as the cases in which second parent adoptions were allowed).

90. See, e.g., Tanielian v. Brooks, 508 N.W.2d 189, 190 (Mich. Ct. App. 1993) ("Absent adoption, this obligation [to support the child] remains with the biological parents."); In re Adoption of Kassandra B. & Nicholas B., 524 N.W.2d 821 (Neb. 1994) (noting that an adoption upon proper consent serves to terminate parental rights); C. v. R., 404 A.2d 366, 368 (N.J. Super. Ct. Ch. Div. 1979) ("The entry of a judgment of adoption shall terminate all relationships between the adopted child and his [or her] parents and all rights and duties and obligations . . . .").

91. Sexual Orientation, supra note 66, at 1656.

92. In re K.J. & R.Z., 21 Fam. L. Rep. (BNA) 1535 (Colo. Dist. Ct. 1995).

93. Id.

94. Id. at 1535-36. Thus, unlike other adoptions, these step-parent adoptions permit both biological parents to retain their parental rights rather than terminating the rights of the parent of the same gender as the adoptive step-parent. See id. at 1536. Although permitting a child to have more than two parents has potential to cause additional power struggles between the parents, there are also psychological benefits to permitting a child to retain ties to the absent biological parent while recognizing the parental role filled by the step-parent. It is this legal recognition of the step-parent role as a caretaking role that is in fact analogous to the recognition sought by the partners of gay and lesbian biological parents.

95. Trend of Judicial Approval for Co-Parent Adoptions Advances; Judicial Victory Threatened in D.C., Lesbian/Gay L. Notes, Nov. 1995, at 147.

96. In re M.M.D. & B.H.M., 662 A.2d 837, 859-61 (D.C. 1995).

97. In re K.M. & D.M., 653 N.E.2d 888, 896-98 (Ill. App. Ct. 1995).

98. Id. at 890, 892.

99. Illinois Appellate Court Says Same-Sex May Adopt Children Jointly, Lesbian/Gay L. Notes, Sept. 1995, at 115, 116.

100. Brief of The Rutherford Institute Amicus Curiae, in Support of Respondent at viii., Cox v. Florida Dep't of Health & Rehabilitative Servs., 656 So. 2d 902 (Fla. 1995) (No. 82,697) [hereinafter Rutherford Brief] (copy on file with the New England Law Review).

101. Cox v. Florida Dep't of Health & Rehabilitative Servs., 656 So. 2d 902 (Fla. 1995).

102. Rutherford Brief, supra note 100, at 3.

103. Id. at 4.

104. Id. at 5. This section of the Rutherford Brief asserted, inter alia, that children of homosexual parents are more likely than are children of heterosexual parents to be orphaned due to the shorter homosexual life span. Id.

105. Id. at 9-10. The Rutherford Brief asserted that gay males are promiscuous and that lesbians are hostile toward men. Id. The other arguments about fleeting and extracurricular relationships simply repeated the promiscuity argument. See id. at 10-11. The arguments concerning sexual promiscuity referred only to the behavior of gay men. Id. Interestingly, the Rutherford Brief acknowledged that "there are some homosexuals who have stable, monogamous relationships and live what appear to be relatively normal lives." Id. at 9. Additionally, opponents of gay and lesbian rights impute the same alleged promiscuous behavior of gay men to lesbian women. The assumption that the rights of lesbians should be restricted because of the behavior of gay men arguably reflects the sexist origins of much of the heterosexist criticism of opponents of lesbian and gay rights; it would appear that such opponents either simply assume that lesbians and gay men act alike, or that the rights of lesbians are too insignificant to merit discussion regardless of whether their behavior mirrors that of gay men.

106. Id. at 11. Without citation to authority, the Rutherford Brief asserted that 29% of children raised by homosexual parents have sex with the homosexual parent. Id.

107. Rutherford Brief, supra note 100, at 14-15 (citing Bowers v. Hardwick, 478 U.S. 186 (1986); Mishkin v. New York, 383 U.S. 502 (1966)). The Rutherford Brief cited heterosexist language from the United States Supreme Court to support its argument of per se immorality and indecency. See id. (citing Mishkin, 383 U.S. at 505, 512). In spite of the removal of homosexuality from the D.S.M. III (Diagnostic and Statistical Manual of Mental Disorders), see infra note 144, the Rutherford Brief asserted, upon the basis of the affidavits from two psychiatrists (one of whom "treats" homosexuals who want to "convert" to heterosexuality), that it "is a psychiatric psychopathological condition." Id. at 16.

108. Id. at 22-32. The Rutherford Brief cited alarming statistics either misconstrued or obtained from questionable "research," about the alleged sexual conduct of gay men. See id. Again, the opponents failed to attempt to discuss why these statistics should have any relevance to lesbians, even if they were true.

109. Id. at 32-40. The Rutherford Brief cited to a "study" by Paul Cameron which claimed that "between forty four [sic] and eight one [sic] percent of all homosexuals surveyed admitted to having engaged in sodomy with at least one underage boy." Id. at 33-34. The study did not explain the large disparity in percentages, nor did it clarify its reference to "all homosexuals" when it was clearly discussing homosexual men. The reference to violent tendencies discussed the mass murders committed by Wayne Williams in Atlanta, and another "study" by the ubiquitous Paul Cameron which asserted that a disproportionate percentage of mass murderers practiced homosexuality. Id. at 34. Without reference to authority, the alleged criminality cataloged a large number of offenses which homosexuals are likely to commit. Id. at 39-40.

110. In reviewing the assertions cited by the Rutherford Institute, Marc Elovitz found a lack of authority and mischaracterizations of cited research in the assertions made in the Rutherford Brief. Marc E. Elovitz, Adoption by Lesbian and Gay People: The Use and Mis-use of Social Science Research, 2 Duke J. Gender L. & Pol'y 207, 220-22 (1995).

111. See Baker v. Wade, 106 F.R.D. 526, 536 (N.D. Tex.) (finding Dr. Cameron's testimony to be "a total distortion" of data regarding homosexuality), rev'd, 769 F.2d 289 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986); Gay Student Servs. v. Texas A & M Univ., 737 F.2d 1317, 1330 (5th Cir. 1984) (finding that there was "no historical or empirical basis" disclosed for Dr. Cameron's "speculative evidence"), cert. denied, 471 U.S. 1001 (1985).

112. See generally Rutherford Brief, supra note 100, at 1-42.

113. See id. at 10-40.

114. It is difficult to estimate the level of sexual activity of lesbians and gay men because identifying, locating, and surveying gay men and lesbians is difficult to do. It has, however, been asserted that AIDS has caused gay men to become less sexually active. Michael Shernoff, Male Couples and Their Relationship Styles, 2 J. Gay & Lesbian Soc. Servs. 43, 45 (1995).

115. See supra notes 105-08 and accompanying text.

116. Marc A. Fajer, Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U. Miami L. Rev. 511, 632-33 (1992); Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187, 188-206 (1988).

117. Rutherford Brief, supra note 100, at 6.

118. Id.

119. Id. at 6-7 (second omission in original) (quoting Elizabeth R. Moberly, Psychogenesis: The Early Development of Gender Identity 14 (1979)).

120. See supra notes 5-12 and accompanying text.

121. Brief of Amicus Curiae Florida Catholic Conference at 8 n.17, 11 n.26, Cox v. Florida Dep't of Health & Rehabilitative Servs., 656 So. 2d 902 (Fla. 1995) (No. 82,967).

122. Id. at 15-16.

123. Id. at 16.

124. Id.

125. See, e.g., Patricia J. Falk, The Prevalence of Social Science in Gay Rights Cases: The Synergistic Influences of Historical Context, Justificatory Citation, and Dissemination Efforts, 41 Wayne L. Rev. 1, 1-8 (1994).

126. Id. at 13.

127. Id. at 20.

128. Id. at 7. Dr. Falk attributed the high social sciences citation rate in lesbian and gay cases to (1) the increased acceptance of social science data by courts and the recency of gay rights cases; (2) courts' desire to cite social science in part to justify decisions in light of the controversial nature of homosexuality (including the need to rebut myths about homosexuality); and (3) the efforts of gay litigants, civil rights organizations, and scientific organizations to provide such information to the courts. Id.

129. Id. at 39. Courts have utilized social science data in this manner in other areas as well, including abortion cases. Id. at 42. Of course, some judges refuse to let scientific evidence outweigh their own ignorance, as demonstrated by a Missouri judge who disregarded all of the expert testimony to rely upon his own "intuition": "The experts' testimony with respect to molestation of minors is likewise suspect. Every trial judge, or for that matter, every appellate judge, knows that the molestation of minor boys by adult males is not as uncommon as the psychological experts' testimony indicated." J.L.P.(H.) v. D.J.P., 643 S.W.2d 865, 869 (Mo. Ct. App. 1982).

130. For a discussion of the critics of this approach as it was used in Brown v. Board of Educ., 347 U.S. 483 (1954), supplemented, 349 U.S. 294 (1955), see Falk, supra note 125, at 44-48.

131. Falk, supra note 125, at 48.

132. Id. at 51.

133. Patterson, supra note 70, at 196.

134. See, e.g., Sharon Jacobson, Methodological Issues in Research on Older Lesbians, 3 J. Gay & Lesbian Soc. Servs. 43 (1995); Natalie J. Woodman et al., Research in Lesbian Communities: Ethical Dilemmas, 3 J. Gay & Lesbian Soc. Servs. 57, 62-63 (1995).

135. Patterson, supra note 70, at 196.

136. Patterson, supra note 11, at 1036.

137. Patterson, supra note 70, at 198-99. For a list of the twelve studies discussed, see id. at 198 n.38.

138. Id. at 199.

139. Susoeff, Comment, supra note 20, at 871.

140. Patterson, supra note 70, at 200. Although she noted the anecdotal accounts of children who experience teasing and other forms of discrimination, Dr. Patterson concluded that children from gay and lesbian families encounter problems no different from households in which members encounter discrimination based upon race, culture, ethnicity, or socioeconomic class. Id. at 200-01.

141. Id. at 199 (citing Patterson, supra note 11, at 1034).

142. Id. at 203-05.

143. The ABA Houses of Delegates approved a resolution that "supports the enactment of legislation and the implementation of public policy providing that child custody and visitation shall not be denied or restricted on the basis of sexual orientation." Law & Society Notes, Lesbian/Gay L. Notes, Oct. 1995, at 139. The resolution was sponsored by the ABA Section on Individual Rights and Responsibilities along with its Sections on Family Law and Litigation, the National Association of Women Judges, National Association of Women Lawyers, and the National Lesbian and Gay Law Association. Id.

144. Susoeff, Comment, supra note 20, at 872 (citing American Psychiatric Association, D.S.M. III: Diagnostic & Statistical Manual of Mental Disorders 380 (3d ed. 1980)).

145. John J. Conger, Minutes of the Annual Meeting of the Council of Representatives, 32 Am. Psychologist 408, 432 (1977).

146. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

147. Id. at 431.

148. Id. at 433.

149. See infra note 150 and accompanying text.

150. Richard Delgado, Fact, Norm, and Standard of Review--The Case of Homosexuality, 10 U. Dayton L. Rev. 575, 575 (1985).

151. Id. at 581-82.

152. See id. at 588 n.104.

153. The Hawaii Supreme Court recognized that this adherence to tradition is not always appropriate when it stated that, "as Loving amply demonstrates, constitutional law may mandate, like it or not, that customs change with an evolving social order." Baehr v. Lewin, 852 P.2d 44, 63 (Haw. 1993).

154. Professor Delgado argued that moral mistakes are possible. See Delgado, supra note 150, at 590-93. He also noted that courts have upheld the private use of pornography, dissemination of contraceptives, and mixed-race marriages in spite of arguments of traditional morality. Id. at 593. Thus, he asserted that if rules are not supported by reason "they are indistinguishable from superstitions, quirks, prejudices, or personal predilections of the lawmaker and are inadequate bases for restricting liberty in a free society." Id.

155. See, e.g., Hunter & Polikoff, supra note 10, at 693; Susoeff, Comment, supra note 20, at 853-54; Sexual Orientation, supra note 66, at 1630 n.6.

156. See, e.g., Cunningham v. Gray, 273 S.E.2d 562 (Va. 1981).

157. Hunter & Polikoff, supra note 10, at 693.

158. See Susoeff, Comment, supra note 20, at 859.

159. See, e.g., G.A. v. D.A., 745 S.W.2d 726, 728 (Mo. Ct. App. 1987); N.K.M. v. L.E.M., 606 S.W.2d 179, 186 (Mo. Ct. App. 1980); Roe v. Roe, 324 S.E.2d 691, 693-94 (Va. 1985).

160. Sexual Orientation, supra note 66, at 1631-32; id. at 1631 n.15 (citing S.N.E. v. R.L.B., 699 P.2d 875, 879 (Alaska 1985); In re Marriage of Birdsall, 243 Cal. Rptr. 287, 289 (Ct. App. 1988); Nadler v. Superior Court, 63 Cal. Rptr. 352, 354 (Ct. App. 1967); D.H. v. J.H., 418 N.E.2d 286, 293 (Ind. Ct. App. 1981); Doe v. Doe, 16 Mass. App. Ct. 499, 503, 452 N.E.2d 293, 296 (1983); In re J.S. & C., 324 A.2d 90, 92 (N.J. Super. Ct. Ch. Div. 1974), aff'd, 362 A.2d 254 (N.J. Super. Ct. App. Div. 1976); Guinan v. Guinan, 477 N.Y.S.2d 830, 831 (1984); Stroman v. Williams, 353 S.E.2d 704, 705-06 (S.C. Ct. App. 1987); Medeiros v. Medeiros, 8 Fam. L. Rep. (BNA) 2372 (Vt. Super. Ct. 1982); In re Marriage of Cabalquinto, 669 P.2d 886, 888 (Wash. 1983); Rowsey v. Rowsey, 329 S.E.2d 57, 60-61 (W. Va. 1985)).

161. Sexual Orientation, supra note 66, at 1632; see also Birdsall v. Birdsall, 243 Cal. Rptr. 287 (Ct. App. 1988); In re R.E.W., 1996 Ga. App. LEXIS 253 (Mar. 7, 1996); In re Marriage of Ashling, 599 P.2d 475 (Or. Ct. App. 1979); In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis.), cert. denied, 116 S. Ct. 475 (1995).

162. Hunter & Polikoff, supra note 10, at 695; see also Christian v. Randall, 516 P.2d 132, 133-34 (Colo. Ct. App. 1973) (requiring nexus showing pursuant to Colorado statute in reversal of trial court, which had removed children from the custody of a transsexual).

163. Falk, supra note 125, at 39.

164. See supra notes 136-42 and accompanying text.

165. Hunter & Polikoff, supra note 10, at 697.

166. See, e.g., In re Michael Lee Parsons, No. 02A01-9403-JV-0037, 1995 WL 442587 (Tenn. Ct. App. July 27, 1995).

167. See, e.g., L. v. D., 630 S.W.2d 240, 245 (Mo. Ct. App. 1982) (forbidding lesbian mother's lover from being in children's presence or in mother's home during visits); Newsome v. Newsome, 256 S.E.2d 849, 853 (N.C. Ct. App. 1979) (removing custody from lesbian mother and granting visitation order requiring that child be kept out of presence of the mother's lover); A. v. A., 514 P.2d 358, 359, 361 (Or. Ct. App. 1973) (permitting father to retain custody of his children, but prohibiting him from having his partner or any other man live in the family home).

168. Sexual Orientation, supra note 66, at 1634.

169. See, e.g., Santosky v. Kramer, 455 U.S. 745, 747-48 (1982) (holding that due process requires a state to offer clear and convincing evidence of natural parents' unfitness before severing their custody rights); Stanley v. Illinois, 405 U.S. 645, 658 (1972) (holding that parents are entitled to hearings regarding fitness pursuant to due process and equal protection before removing natural child from parent's custody).

170. Sexual Orientation, supra note 66, at 1634.

171. Id. at 1635; see also Townend v. Townend, 1 Fam. L. Rep. (BNA) 2830, 2831 (Ohio Ct. C.P., Portage County, Mar. 14, 1975) (granting custody to a paternal grandmother because mother lived in lesbian relationship with her partner).

172. Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995).

173. Bottoms involved a custody dispute between the natural mother of a child and the child's maternal grandmother. Id. at 103. The court concluded that the best interest of the child would be served by awarding custody to the grandmother instead of the mother. Id. One of the factors considered by the court in terminating the mother's custody was the mother's lesbianism and her "refus[al] to subordinate her own desires and priorities to the child's welfare." Id. at 108.

174. See Davies, Note, supra note 19, at 1072-74.

175. See, e.g., In re M.M.D & B.H.M, 662 A.2d 837, 843 (D.C. 1995).

176. Sexual Orientation, supra note 66, at 1645.

177. Id. at 1645-46.

178. See Evall, supra note 63, at 361-64.

179. The statistics about the hostility faced by lesbian and gay minors in our society are distressing. Studies have found that 50% of adolescent gay males have experienced negative reactions from their own parents about their sexual orientation, and that up to 30% of the annual youth suicides are by lesbians and gays. Julie A. Pryde & Edmund V. Mech, Empowering Lesbian and Gay Foster Adolescents Through Mentoring Relationships, 2 J. Gay & Lesbian Soc. Servs. 59, 59-60 (1995). In addition, it is commonly acknowledged that runaways and street youths are disproportionately lesbian and gay. Id.

180. Evall, supra note 63, at 371.

181. The author has directed a clinic for persons with HIV infection for more than six years and has been working with agencies serving HIV-infected persons for more than ten. During this time, he has encountered a number of gays and lesbians who have cared for infected babies and children.

182. Fla. Stat. Ann. § 63.042 (West 1985 & Supp. 1996).

183. See generally Arsenault, Comment, supra note 31; supra notes 33-67.

184. Cox v. Florida Dep't of Health & Rehabilitative Servs., 656 So. 2d 902 (Fla. 1995).

185. Id. at 903.

186. Id.

187. See Seebol v. Farie, 17 Fam. L. Rep. (BNA) 1331 (16th Cir. Ct. Fla. 1991), reprinted in State Dep't of Health & Rehabilitative Servs. v. Cox, 627 So. 2d 1210, 1221-29 (Fla. Dist. Ct. App. 1993).

188. Amer v. Johnson, No. 92-14370 (17th Cir. Ct. Broward County, Fla. 1996) (order scheduling trial for Aug. 5, 1996, Frusciante, J.).

189. See infra notes 209, 237-47, 285-94 and accompanying text.

190. See Cox v. Florida Dep't of Health & Rehabilitative Servs., 656 So. 2d 902, 902 (1995).

191. Florida Dep't of Health & Rehabilitative Servs. v. Cox, 627 So. 2d 1210, 1216-20 (Fla. Dist. Ct. App. 1993), review granted, 637 So. 2d 234 (Fla. 1994), and approved in part, quashed in part, 656 So. 2d 902 (Fla. 1995).

192. See, e.g., Traylor v. State, 596 So. 2d 957, 962 (Fla. 1992). The Florida Supreme Court adopted the primacy approach to the state constitution stating that: "When called upon to decide matters of fundamental rights, Florida's state courts are bound under federalist principles to give primacy to our state constitution and to give independent legal import to every phrase and clause contained therein." Id.

193. See, e.g., Baehr v. Lewin, 852 P.2d 44, 57 (Haw. 1993). Despite ruling in favor of the gay and lesbian plaintiffs on their equal protection claim, the Hawaii Supreme Court refused to interpret its own privacy amendment to protect homosexuals, although it could have done so. Id. For discussion of other states' approaches to interpreting their own constitutions, see generally Ronald K.L. Collins & Peter J. Galie, Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions, 55 U. Cin. L. Rev. 317, 348 (1986) (noting that state courts many times prefer to resolve individual rights cases on federal constitutional grounds rather than state constitutional grounds); Julia A. Morris, Challenging Sodomy Statutes: State Constitutional Protections for Sexual Privacy, 66 Ind. L.J. 609 (1991); Robert F. Williams, In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C. L. Rev. 353, 356 (1984) (noting that state high courts may feel obliged to follow United States Supreme Court reasoning when interpreting analogous state constitutional provisions).

194. Traylor, 596 So. 2d at 962 (citing Stewart G. Pollock, State Constitutions as Separate Sources of Fundamental Rights, Address delivered at the Weintraub Lecture Series at the S.I. Newhouse Center for Law and Justice, in 35 Rutgers L. Rev. 707, 709 (1983)).

195. See Fla. Stat. Ann. § 63.042(2) (West 1985 & Supp. 1996) (allowing the following persons to adopt: married adults, unmarried adults, and the unmarried minor birth parent of the person to be adopted); see also Fla. Stat. Ann. § 63.042(4) (West 1985) (allowing disabled persons to adopt if their disability does not adversely affect their ability to be an effective parent).

196. Fla. Stat. Ann. § 63.042(3) (West 1985). Florida courts have previously rejected the advanced age or financial status of applicants as grounds to deny adoption. See Jones v. Allen, 277 So. 2d 599, 600 (Fla. Dist. Ct. App. 1973) (holding income/financial position not sole determining factor); In re Adoption of Christian, 184 So. 2d 657 (Fla. Dist. Ct. App. 1966) (advanced age not a factor); In re Duke, 95 So. 2d 909 (Fla. 1957) (advanced age not a factor).

197. Fla. Stat. Ann. § 63.022(1) (West Supp. 1996).

198. Fla. Stat. Ann. § 63.092(2) (West Supp. 1996).

199. Fla. Stat. Ann. § 63.125 (West Supp. 1996).

200. Fla. Admin. Code Ann. r. 10M-8.0053 (1994).

201. N.H. Rev. Stat. Ann. § 170-B:4 (1994).

202. Florida Dep't of Health & Rehabilitative Servs. v. Cox, 627 So. 2d 1210, 1212 (Fla. Dist. Ct. App. 1993) [hereinafter Cox I], review granted, 637 So. 2d 234 (Fla. 1994), and approved in part, quashed in part, 656 So. 2d 902 (Fla. 1995) [hereinafter Cox II].

203. Cox I, 627 So. 2d at 1212. In the original complaint, Cox was joined by his life-partner, Rodney M. Jackman, but Jackman did not participate in the appeal to the Florida Supreme Court. Initial Brief of Petitioner at 1, Cox v. Florida Dep't of Health & Rehabilitative Servs., 656 So. 2d 902 (Fla. 1995) (No. 82,697).

204. Cox I, 627 So. 2d at 1212.

205. Initial Brief of Petitioner at 1, Cox (No. 82,697).

206. Id. at 2.

207. Id.

208. Id. at 3.

209. Cox I, 627 So. 2d at 1213.

210. Cox II, 656 So. 2d at 903.

211. Id.

212. Id. (Kogan, J., concurring in part, dissenting in part).

213. Id. at 904 (Kogan, J., concurring in part, dissenting in part). Section 800.02, Florida Statutes reads as follows: "Whoever commits any unnatural and lascivious act with another person shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083." Fla. Stat. Ann. § 800.02 (West 1992). This statute was adopted by the legislature in 1917 near the end of the First World War. See 1917 Fla. Laws ch. 7361, § 1.

214. Cox II, 656 So. 2d at 904 (Kogan, J., concurring in part, dissenting in part).

215. Justice Kogan also noted that the Florida Department of Health and Rehabilitative Services' interpretation of § 800.02 implies that it covers private, consensual sexual activity between adults, an open question under Florida law, and arguably a violation of the Privacy Amendment. See Cox II, 656 So. 2d at 904 (Kogan, J., concurring in part, dissenting in part); see also Fla. Const. art. I, § 23 (adopted 1980). The per curiam opinion does not address this troubling issue. If this statute is being construed to be a sodomy statute, then it behooves the court to explain what acts will be considered to be sodomy and why they are not protected by Florida's constitution. See Cox II, 656 So. 2d at 904-05 (Kogan, J., concurring in part, dissenting in part). Further, he noted that Health and Rehabilitative Services' definition of sodomy was not promulgated pursuant to the appropriate rule-making proceedings. Id. at 905 (Kogan, J., concurring in part, dissenting in part).

216. See Trial Brief of Defendants at i, Cox v. Florida Dep't of Health & Rehabilitative Servs. (No. 91-3491-CA-01) (12th Jud. Cir. Sarasota County, Fla. 1991) (citing Michael Ruse, Are There Gay Genes? Sociobiology and Homosexuality, 6 J. Homosexuality 1 (1981); Mary B. Harris & Pauline J. Turner, Gay and Lesbian Parents, 12 J. Homosexuality 101 (1986)).

217. Harris & Turner, supra note 216, at 112.

218. See Ruse, supra note 216, at 5-32.

219. Trial Brief of Defendants at 4, Cox v. Florida Dep't of Health & Rehabilitative Servs. (No. 91-3491-CA-01) (12th Jud. Cir. Sarasota County, Fla. 1991) (citing Ruse, supra note 216, at 13-14, 28).

220. Ruse, supra note 216, at 13. The proponent of this particular theory stated, without citation to authority, that males masturbate more than females and that "[a]n erect penis, even if it is one's own, catches the eye far more than an erect clitoris, especially if it is one's own." Id. at 14. The author of the article took this theory one step further by hypothesizing that homosexual males might "be able to sustain an erection longer and to have bigger penises." Id. at 27. Of course, one could question about how all of this penis obsession relates to lesbianism at all, but the obsession in discussing gay males when discussing homosexuality in general, as though lesbianism is irrelevant, is hardly unique to Ruse's article. Ruse's article is hardly more than sophomoric speculation about the causes of homosexuality and might be amusing, but for the fact that this is the only "scientific" evidence offered by the state to support its position.

221. Id. at 23 (citation omitted).

222. For a discussion of the rational basis argument, see infra notes 284-94 and accompanying text.

223. Cox II, 656 So. 2d at 902-03.

224. Bowers v. Hardwick, 478 U.S. 186 (1986).

225. Id. at 190-91. For a discussion of the right to privacy, see Stanley v. Georgia, 394 U.S. 557, 564 (1969); Griswold v. Connecticut, 381 U.S. 479, 485 (1965).

226. See, e.g., Arsenault, Comment, supra note 31, at 820 n.42, 821 n.44.

227. See infra notes 249-55 and accompanying text. For a discussion of the conflicts that arise in cases dealing with the status/conduct distinction, see Nan D. Hunter, Life After Hardwick, 27 Harv. C.R.-C.L. L. Rev. 531, 546-53 (1992).

228. See infra notes 229-36 and accompanying text.

229. See Commonwealth v. Wasson, 842 S.W.2d 487, 492-502 (Ky. 1992).

230. See Evans v. Romer, 854 P.2d 1270, 1276-86 (Colo.), cert. denied, 114 S. Ct. 419 (1993); Evans v. Romer, 882 P.2d 1335 (Colo. 1994), cert. granted, 115 S. Ct. 1092 (1995). For a discussion of Evans v. Romer, see Daniel A. Batterman, Comment, Evans v. Romer: The Political Process, Levels of Generality, and Perceived Identifiability in Anti-Gay Rights Initiatives, 29 New Eng. L. Rev. 915 (1995).

231. Traylor v. State, 596 So. 2d 957, 962 (Fla. 1992).

232. Fla. Const. art I, § 23 (adopted 1980).

233. The court stated, "[i]n other words, the amendment embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal [sic] Constitution." In re T.W., 551 So. 2d 1186, 1192 (Fla. 1989).

234. Winfield v. Division of Pari-Mutuel Wagering, 477 So. 2d 544, 546 (Fla. 1985).

235. See id. at 548 (recognizing stronger right to privacy than United States Constitution, particularly in financial records). Compare id. with United States v. Miller, 425 U.S. 435, 440 (1975) (holding that personal bank records are not within zone of privacy).

236. Gerald B. Cope, Jr., To Be Let Alone: Florida's Proposed Right of Privacy, 6 Fla. St. U. L. Rev. 673, 673 n.*, 767-68 (1978). For further discussion of the Privacy Amendment's history, see generally Gerald B. Cope, Jr., A Quick Look at Florida's New Right of Privacy, 55 Fla. B.J. 12 (1981); Gerald B. Cope, Jr., Note, Toward a Right of Privacy as a Matter of State Constitutional Law, 5 Fla. St. U. L. Rev. 631 (1977).

237. Cox I, 627 So. 2d at 1212.

238. Id. at 1216.

239. See Fla. Const. art. I, § 23 (adopted 1980).

240. See B.B. v. State, 659 So. 2d 256, 258-59 (Fla. 1995) (acknowledging that Florida Supreme Court recognizes that certain personal activities fall within privacy interests protected by the United States Constitution (citing Shevin v. Byron, Harless, Schaffer, Reid & Assocs., 379 So. 2d 633, 636 (Fla. 1980))). Presumably, if these matters fall within the privacy interests protected by the United States Constitution, they also fall under the Florida Privacy Amendment. See supra note 233 and accompanying text.

241. In re Guardianship of Browning, 568 So. 2d 4, 10 (Fla. 1990).

242. In re Florida Bd. of Bar Examiners, 358 So. 2d 7, 10 (Fla. 1978).

243. The court noted in a 1989 decision its recognition of strong privacy protection prior to the 1980 Privacy Amendment:

In an opinion which predated the adoption of section 23, the First District aptly characterized the nature of this right:

A fundamental aspect of personhood's integrity is the power to control what we shall reveal about our intimate selves, to whom, and for what purpose.

Because this power is exercised in varying degrees by differing individuals, the parameters of an individual's privacy can be dictated only by that individual. The central concern is the inviolability of one's own thought, person, and personal action. The inviolability of that right assures its preeminence over "majoritarian sentiment" and thus cannot be universally defined by consensus.Shaktman v. State, 553 So. 2d 148, 150-51 (Fla. 1989) (citation omitted) (footnote omitted) (quoting Byron, Harless, Schaffer, Reid & Assocs. v. State ex rel. Schellenberg, 360 So. 2d 83, 92 (Fla. Dist. Ct. App. 1978), quashed and remanded on other grounds sub nom. Shevin v. Byron, Harless, Schaffer, Reid & Assocs., 379 So. 2d 633 (Fla. 1980)).

244. Woodward v. Gallagher, 1 Fla. L. Wkly. Supp. 17 (9th Cir. Ct. Fla. 1992) (firing of deputy sheriff because of his sexual orientation violated right to privacy); Seebol v. Farie, 17 Fam. L. Rep. (BNA) 1331 (16th Cir. Ct. Fla. 1991) (holding that adoption prohibition violated Privacy Amendment), reprinted in State Dep't of Health & Rehabilitative Servs. v. Cox, 627 So. 2d 1210, 1221-29 (Fla. Dist. Ct. App. 1993).

245. Cox I, 627 So. 2d at 1216.

246. Id.

247. See, e.g., Perry v. Sindermann, 408 U.S. 593, 597 (1972) (overturning a burden on the right of freedom of expression); Shapiro v. Thompson, 394 U.S. 618, 627 (1969) (overturning a one-year in-state residency requirement of welfare applicants); Reynolds v. Sims, 377 U.S. 533, 555 (1964) (overturning restriction on the right to vote); see also Florida Bd. of Bar Examiners Re: Applicant, 443 So. 2d 71, 74 (Fla. 1983). In Florida Board of Bar Examiners, the court upheld questions on the application for admission to the Florida Bar concerning the history of psychological and medical treatment of the applicant because of a compelling state interest, but nevertheless found that the applicant's right of privacy had been implicated. Florida Bd. of Bar Examiners, 443 So. 2d at 74.

248. See infra notes 249-62 and accompanying text.

249. Professor Diane H. Mazur criticized the attorneys who have tried to utilize the conduct/status distinction on behalf of lesbian and gay servicemembers challenging their exclusions. Diane H. Mazur, The Unknown Soldier: A Critique of "Gays in the Military" Scholarship and Litigation, 29 U.C. Davis L. Rev. 223, 235-49 (1996). Such arguments have been shaped so that the plaintiff claims that an exclusion based upon conduct could be permissible, but not one based upon homosexual status. Professor Mazur asserted that such arguments misrepresent the typical lesbian or gay servicemember, present distorted evidence concerning the actual plaintiffs, and result in hollow "victories" where the gay or lesbian plaintiff is forced to agree to never engage in an intimate same-sex relationship. Id. at 239.

250. See, e.g., Fernando J. Gutierrez, Gay and Lesbian: An Ethnic Identity Deserving Equal Protection, 4 L. & Sexuality 195, 206-09 (1994).

251. See id. at 203-04.

252. Id. at 207 (quoting Frederick Suppe, In Defense of a Multidimensional Approach to Sexual Identity, 9 J. Homosexuality 7, 10 (1984)).

253. See generally David R. Matteson, The Heterosexually Marrie