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Court declines to hear case over law barring gays from adopting

WASHINGTON—The Supreme Court refused to get involved in a case over gay adoptions Monday, signaling an unwillingness among the justices to take on another contentious gay-rights case or even to defend their sweeping 2003 ruling about gay equality.

In upholding a Florida law prohibiting gays from adopting children, a lower court had challenged the logic behind the Supreme Court's landmark 2003 opinion striking down sodomy laws, Lawrence v. Texas, and refused to acknowledge its broad protections for gay rights.

Court watchers called that lower-court ruling "disrespectful," making it a strong candidate for high-court review. But the justices blinked Monday, leaving the Florida law intact and the lower-court opinion as the final word on the issue.

"This shows the justices clearly want to give gay rights a rest, at least for this term," said David Garrow, a constitutional expert and historian. Garrow said Justice Anthony Kennedy, who wrote the 2003 opinion, and the justices who supported it may have sensed a strong backlash lurking behind the Florida case, which brought gay rights together with children and family issues.

Since adoption is an issue that's typically been left to the states, and Florida is the only state that has a law prohibiting gays from adopting, the risk of a backlash may have outweighed the importance of a new ruling.

"Kennedy could be falling on his sword here, to avoid a fight over this in such a charged context," Garrow said. "It just isn't a fight they're willing to get into right now."

Greg Wallance, a lawyer who recently completed a 50-state survey of gay adoption laws for the Center for Adoption Studies in New York, said the court's decision held an important tactical lesson for the gay rights movement.

"Trying to win grand-scale battles and scoring knock-out victories is not going to work," Wallance said, because the backlash from such actions is so strong. "They won't have a Selma, Alabama, or a Brown v. Board of Education like the civil rights movement did, to push things along. They'll have to count on mounting small, strategic wins that involve individuals rather than grand schemes."

Wallance's survey found, for example, that the trend in most states is toward broader recognition of gay rights in adoption and custody disputes, even in areas that are considered conservative.

Six states and the District of Columbia explicitly permit gays to adopt, while only one, Florida, forbids it. The Child Welfare League of America and the American Academy of Pediatrics support gay adoption. In Mississippi, the state Supreme Court recently overturned a custody order that placed too much weight on a father's allegation that a child's mother had a lesbian affair. A Georgia court recently said in custody disputes that the primary consideration must be "the needs of the child rather than the sexual preferences of the parents."

"It's turning, but slowly," Wallance said.

The Florida case sprang from a challenge by several gay men who've been foster parents for years but have been unable to adopt. In 1977, at the height of singer Anita Bryant's anti-gay campaign, the state banned adoptions by gays. The men said the law prevented their children from being fully adopted into the families that the state had determined to be best suited for them. They also said the Supreme Court's 2003 decision in Lawrence v. Texas prohibited laws that were based on moral disapproval of gays.

The state said it was trying to preserve mother-and-father-led families through the law, and that adoption wasn't a guaranteed right for anyone.

Florida doesn't prohibit single people from adopting children, however.

A federal judge in Miami said the Florida law was constitutional and a panel of the 11th U.S. Circuit Court of Appeals in Atlanta went further to say that Lawrence v. Texas shouldn't even be applied in the case. Writing for the majority, Judge Stanley Birch Jr. said Lawrence included "language and reasoning" that were "inconsistent with standard fundamental-rights analysis."

Birch's opinion is notable for its defiance; lower courts, by definition, are supposed to interpret and apply Supreme Court rulings, rather than knocking their reasoning.

Garrow said Birch's tone in the opinion was even more striking. "It's almost personally insulting to Justice Kennedy," he said. "To my mind, this is as much about bad behavior by lower courts as it is about gay adoption."

It's not unprecedented, though, Garrow pointed out, for the court to behave this way over issues of civil rights.

When the court desegregated schools in Brown v. Board of Education in 1954, it failed for many more years to apply that ruling to public buses or marriage laws or even cohabitation laws. When the court issued another landmark gay-rights decision in 1996 barring certain kinds of anti-gay legislation, it followed that ruling with a decision to let stand a Cincinnati provision that barred laws to protect gay rights.

"It's not uncommon for them to issue bold declarations on equality, then turn tail when it comes time to enforce them," Garrow said.

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(c) 2005, Knight Ridder/Tribune Information Services.

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