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Analyst: Courts to drive gay adoption policy

ATLANTA, Georgia (CNN) -- The sensitive issue of adoption by gay and lesbian parents will continue to gain political acceptance, albeit slowly, predicts one legal analyst.

But it will be the courts, not state legislatures, that will take the lead in writing law in the field, said William Duncan, acting director of the Marriage Law Project at Catholic University of America in Washington.

Gay adoption first became a legal issue in the United States in the early 1990s, and today gays and lesbians can adopt in most states, Duncan said.

"The real issue has to be whether there can be [gay and lesbian] adoption for couples," he said.

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Florida is the only state that has laws forbidding gay and lesbian adoptions. Mississippi laws forbid same-sex couples to adopt. Utah laws give preference to adoptions to married couples.

"Florida is sticking out, and it attracts the attention of celebrities," Duncan said. "I would be surprised if in Florida the legislators don't repeal the law," pointing to the contradiction of that state's laws that allow homosexuals to be foster parents but not to adopt.

The issue of gay and lesbian adoption has been in the news after talk-show host Rosie O'Donnell criticized Florida and President Bush in opposing gay adoption.

O'Donnell was prompted to discuss her sexuality openly and motherhood after reading about the case of Steve Lofton and Roger Croteau, a gay couple suing the state of Florida to overturn its ban on gay adoption.

The American Civil Liberties Union's Lesbian and Gay Rights Project is leading the lawsuit with Lofton, Croteau, and Wayne Smith and Dan Skahen -- two other Florida gay foster parents who want to adopt -- as plaintiffs.

Eventually, Duncan said, states will begin to liberalize and possibly abolish laws forbidding gay adoptions. But resistance remains to gay adoptions, Duncan said, pointing to a recent decision by the Nebraska Supreme Court.

The narrow ruling prohibited a lesbian from adopting her partner's son, saying the boy couldn't be adopted because his mother hadn't terminated her parental rights. The Nebraska court didn't settle the issue of whether a gay couple can adopt a child.

"There are certainly states where you will find acceptance," Duncan said. "But here there are other states where you will find resistance such as Nebraska.

"From a politician's perspective, you can see why they would avoid the issue," Duncan said. "There's strong feelings on both sides, and it's not clear-cut. And if I'm a legislator in Nebraska, I don't want to appear on TV against Rosie O'Donnell."