Harry Coverston, University of Central Florida
I’d like to begin my comments by thanking Nancy Nicol for such a fine and moving documentary. The documentary raises a number of considerations that as a member of the Florida Bar and former practicing attorney I would like to examine. I will begin with comments from the documentary itself and then examine them in the context of Florida law.
- The Parent/Child Relationship
Early in the documentary, one of the lesbian mothers observes: “We’ve always been seen as adolescents.” Adolescents are viewed as needing parents to direct, control, and give permission. This is an important beginning point because it recognizes a constant in the relations between socially powerful and powerless parties—the presumption by the powerful of the right to define the powerless and to make decisions on their behalf, often cast in terms of being for their own good. This pattern is clearly observable historically in the social relations between men and women, whites and people of color, the fully able bodied and disabled persons, and heterosexuals and gays and lesbians.
The presumption of the parental right of the powerful to give or withhold permission to the powerless persons constructed as children is apparent in several places in the documentary. In discussing the refusal of most people to see the crisis that was emerging with the onset of the HIV epidemic, a denial that included the refusal by the media to report the cause of death of HIV victims accurately, the gay couple reported the refusal by many families of deceased HIV victims to give permission to their gay and lesbian friends to attend their funerals. Another example of the parent/child dynamic is seen when the clerk at the fertility clinic asks the prospective lesbian mother “Where’s your husband?” and when informed this was a same-sex couple, ended the conversation with a parental withholding of permission: “We don’t do that,” she said.
Another aspect of this parent/child relationship is the expectation of the self-styled parent to be thanked for their generosity when they deign to do something for those they see as children. One of the gay partners noted: “What we were offered was not much—civil unions, but not full equality.” The original bill provided no parental rights and a civil union status far shy of the bundle of rights legal marriage contains. On the parental side of the exchange, the Minister of Justice who crafted the bill saw the offering of second class citizenship as magnanimous: “But it’s a very generous offer on the part of the government…,” he said, adding regarding his own motives, “I wanted to do something good.”
- Theory vs. Reality
The recognition of the parent/child presumption is critical to understanding the second point raised by this documentary, the disparity between the often noble ideals of law and the reality of its practice. The documentary provides an example of how the right of same-sex couples to adopt children was said to exist in theory given language in the provincial charter regarding equality of all citizens not to mention the provincial law’s failure to proscribe it. But when the lesbian couple sought to recognize the non-biological mother as a legal parent, their petition was denied by the courts. Ultimately, Quebec gays and lesbians would prove victorious in their quest for erasing the gap between rights in theory and enforceable rights in practice. But such has hardly been the case here in Florida.
The theory in Florida, as in many places, is that everyone is equal before the law. The very first article of our state constitution asserts that “all natural persons, female and male alike, are equal before the law and have inalienable rights.” There is also a section protecting the right of every natural person “to be let alone and free from governmental intrusion.” The state constitution, much like the national, prohibits any establishment of religion or penalizing of its free exercise. Thus, in theory, in Florida people are equal.1
In practice, however, the history of gay and lesbian rights in Florida is at best a mixed bag. Florida is one of 21 states with a sodomy law still on the book,2 albeit unenforceable since the US Supreme Court ruled such laws a violation of the due process clause of the Constitution in the landmark Lawrence v. Texas case in 2003.3 While 44 states including Florida have laws prohibiting both same sex marriage as well as recognizing same sex marriages from other states,4 laws that I believe violate the Full Faith and Credit Clause of the US Constitution, Florida has thus far resisted the urge to enshrine this discriminatory law in its constitution as have 26 of our 50 states. Yet, Florida is not among the 10 states with laws expressly prohibiting same sex partner benefits and three counties and six cities have recognized them thus far. Thirty-two states have some version of anti-discrimination laws in operation. In Florida that has come only in the form of anti- discrimination provisions in hiring, promotion, and admission at this state university and thus far one other. Five Florida counties including Orange County and 12 Florida cities including Orlando have anti-discrimination ordinances on the books.5 And Florida is one of the 32 states with hate crime laws covering crimes based in homophobia.
- Politics of the Heart—Parental Rights
Florida is a long way from the removal of discriminatory restrictions on the right of same sex couples to marry that Quebec has found a way to achieve. But it is the other topic of this documentary, parental rights of same sex couples, in which Florida appears to have the greatest disparity between the theory of equality and the practice of discrimination.
In 1977, Miami-Dade County became the first local government in Florida to pass an anti- discrimination ordinance which included gays and lesbians within its provisions. Almost immediately, a loud and often angry response arose from opponents, primarily from the leaders of organized religions. Led by a former Miss America, Anita Bryant, then serving as the advertising spokesperson for the Florida citrus industry, the campaign to revoke the ordinance was cast almost exclusively in terms of an anti-pedophilia crusade. Bryant became the spokesperson for the Save our Children campaign marked by unsupported warnings that “a particularly deviant-minded [gay] teacher could sexually molest children.” The campaign was ultimately successful with the referendum to repeal the ordinance passing by over 70% approval.
It is critical to note the elements of a moral panic connecting pedophilia and homosexuality deliberately engendered for political purposes to support a discriminatory referendum. Ironically, the connection of sexual abuse of children and homosexual orientation has been consistently refuted by most data on sexual abuse on children.6 Indeed, picket signs at Bryant speeches during the campaign read: “We don’t want your children, Anita, just your husband.”7
It is also critical to note here the strongly religious overtones of the Save Our Children campaign. In a 1978 interview with Playboy magazine, Bryant, a self-proclaimed “born again Christian,” simply dismissed the findings of the Kinsey studies with the assertion that “he had no spiritual beliefs, no religious beliefs.”8 Indeed, in recent election returns from eight states holding referenda on constitutional amendments banning same-sex marriages, the two strongest demographic markers for support of the amendments were age (those over 60) and religion. In Virginia, support for the ban was highest among white evangelical Protestants, 2 of 3 voting in favor, and those who reported attending church more than once weekly, 80% of whom voted in favor. Conversely, only 20% of those reporting no religious affiliation voted for the ban, slightly less than half of Roman Catholics and of those who say they never attend church, only 27% voted in favor of the ban.
If we were to construct a continuum of support for gay and lesbian issues generally based upon social institutions from most supportive to least, it would likely find that the strongest support for those issues has come from labor unions, a point noted in the documentary. The anti- discrimination policy recently enacted here at the University of Central Florida is a good example, the direct result of contract negotiations by the local NEA affiliate and a university previously intent on not writing antidiscrimination into university policy. Corporations have been the second strongest supporter of same sex rights with many well-known companies ranging from Disney to AT&T offering same sex partner benefits. In the sectors less likely to support gay and lesbian issues, governmental agencies have a mixed record as noted previously. And clearly the social sector least likely to support gay and lesbian issues has been organized religion with a few exceptions of supportive bodies such as Reform Judaism, the United Church of Christ, and Unitarian- Universalists.
This is a particularly important recognition when we begin to talk about the role of a government whose constitution promises equality to all of its citizens and the right to privacy in their personal lives—equality in theory—but whose laws provide legal means of blatant discrimination. And no area of the law more readily demonstrates this than those provisions surrounding parental rights.
In the wake of the Miami-Dade campaign to repeal its same-sex protective ordinance, the Florida legislature moved to save its children by passing the most restrictive law regarding adoptions in the country providing that “No person eligible to adopt under this statute may adopt if that person is a homosexual.”9 For 23 years, Florida stood alone in this restrictive policy. In 2000, Utah and Mississippi joined the no gay adoptions club. While the Florida legislature has several times attempted to repeal the statute, it remains on the books.
In 1994, a case was filed against the Florida Department of Children, Youth, and Families by a same sex couple, both pediatric nurses, who had over their 20-plus year relationship gained foster care of four mixed race, HIV positive children. It is difficult to find foster placements for such children, much less adoptive parents. When one of the children who tested positive at birth for HIV and cocaine sero-reverted to HIV negative status at 18 months, the state began proceedings to remove the child from the foster home and place him for adoption. Seeking to circumvent the removal of the child, foster parents Lofton and Croteau filed to adopt the child themselves only to be rejected, in keeping with Florida law, because they were gay. They then filed suit to overturn the law.
The case made its way to the US Supreme Court which in 2005 refused to accept the case for review letting stand a US District Court decision ruling that Florida’s discriminatory adoption law was constitutional. The Court’s ruling rejected the claim that equal protection had been denied the plaintiffs by equating gay partnerships with unmarried heterosexuals who are also frequently denied adoptions. Such an equation is rather cynical at best. Though the current Florida Defense of Marriage Act had not yet been added to the Florida Statutes expressly banning gay marriages, prior state law had never provided the means for same sex marriage. While unmarried heterosexual couples can always cure the defect in their adoption proceedings by getting married, same sex couples have no such option.
Interestingly, the Court’s ruling denied the State of Florida’s claim that the law should stand because it represents the state’s desire to express moral disapproval of homosexuality. But the admission by the state that such a discriminatory motivation prompted the statute in the first place was rather stunning. Ultimately, the Court’s ruling turned on what it called a rational state interest in an official preference for heterosexual, married couples who provide children with proper gender roles and minimal stigmatization.
In short, even as the Court ruled against a denial of equal protection of the laws required under state and federal constitutions, it did so on the basis of two clear actual denials of equal protection in practice: the inability of same sex couples to marry and thus qualify as adoptive parents and the reality of bigotry against gays and lesbians which motivated the discriminatory statutes and which the Court feared would stigmatize their children. Given the state’s admission of its willingness to use official power to express moral disapproval of homosexuality, it provides an interesting argument to assert that because we cannot protect your children from our bigotry they must be denied to you as adoptive children.
Given that this is a conference on blasphemy, heresy, and freedom of expression, I would like to leave you with some questions about the same:
- What prevents Americans from recognizing and naming the disparity between our ideals of democracy and its practice? When do we say the emperor has no clothes?
- At what point does the raw exercise of state power to further a clearly discriminatory agenda become the tyranny of the majority that Alexis de Tocqueville warned us of in the early 19th century? Is it blasphemous to confront the majority with its tyranny?
- When does the unquestioned common sense represented by statements of “We don’t do that” and “heterosexual parents provide better role models” get tested in the crucible of critical reason and life experience? Is it heretical to call such common sense into question? “Common to whom?” “Sensible in what way?”
- When do we become willing to recognize the essential role of religion in the creation and maintenance of discriminatory laws such as those involving same sex parental rights? When do we question the constitutionality of such approaches in light of the no establishment clauses of our state and national constitutions? Is it heresy even to raise such questions?
- Florida Constitution, Art. 1, Section 2, Basic Rights. Section 3, Religious Freedom. Section 23, Right of Privacy (2006).
- Florida Statutes 800.02, Unnatural and Lascivious Act (1917).
- Lawrence v. Texas 539 U.S. 558 (2003).
- Florida Statutes 741.212 (2004).
- Data reported here collected and reported by Equality Florida (2007). Available online from Equality Florida <http://www.eqfl.org/issues/hro.html>. Accessed 26 Aug. 2008.
- Gregory Herek, Ph.D. Facts About Homosexuality and Child Molestation (2007). Available online from <http://psychology.ucdavis.edu/rainbow/html/facts_molestation.html>. Accessed 16 Jan. 2007.
- Tom Ambrose. Destroying Our Way of Life (2007). Available online from <http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=23446>. Accessed 16 Jan. 2007.
- “Playboy Interview: Anita Bryant,” Playboy 25 (May 1978): 85.
- Florida Statutes 63.042, Who May Be Adopted; Who May Adopt (1977).