Tuesday, November 25, 2008

Florida Court Invalidates State's Gay Adoption Ban

A Florida court has invalidated a state law that prohibits adoption by gay or lesbian individuals. The court's ruling followed a full trial in which the court heard testimony on the issue of whether a "rational basis" could justify the law.

Often, people have a knee-jerk reaction to the subject of gay parenting. To avoid falling victim to this pattern, I strongly encourage you to read the court's opinion. Some of it is technical, but it has a very "readable" quality. The first dozen pages describe the "family" in the case and present the children as very stable and healthy. If you have children, you will probably relate to this part of the opinion -- unless your household looks more like "Married With Children."

Here are some highlights:

* As I mentioned above, the first part of the opinion describes the daily routine of the children whose father brought the suit. The gay male, who is partnered, started as a foster parent for the two siblings. He and his partner have basically raised the children for four years. When the kids first arrived one of them did not even speak due to severe depression, and both of them were poorly clothed and ill. They were highly neglected children. Under the care of their new parents, they are now healthy and adjusting. But under Florida law, apparently they were better off in temporary placements than with permanent gay adoptive parents.

* Although the disputed law bans adoptions by "homosexuals," Florida does not ban adoptions by unmarried individuals. In fact, over 1/3 of adoptions in Florida involve single parents. Because the State permits adoptions by single people, it basically negated the "kids need a man and woman as parents" argument.

* Under Florida law even FELONS can adopt! Yes, felons have more rights under Florida adoption law than law-abiding homosexuals."

* Florida permits gays and lesbians to serve as foster parents - even for extended periods of time. The state considers gays and lesbians fit to serve as temporary, but not permanent, parents. Are you beginning to see why the judge ruled that the law lacks a rational basis?

* The State of Florida presented evidence which it used to argue that gay and lesbian people have higher rates of alcohol abuse, depression and lower life expectancies. The court very powerfully dismantled that argument. It noted, for example, that if the State prohibited all demographic groups with higher rates of alcohol consumption, smoking and depression from adopting, then only Asian American males in the state could adopt.

* The court held that the law infringed the rights of prospective gay or lesbian parents and the rights of children. Gay and lesbian parents have a right to "equal protection" of the laws, and children have a right to "permanency" (i.e., getting out of foster care and into a permanent home placement). Most of these cases turn on the rights of parents. I am happy to see children's interests form part of the ruling.

* The fact that the court made its ruling after a full trial means that the appeals courts should exercise deference when reviewing the factual conclusions. A very standard legal doctrine requires appellate courts to defer to trial courts on fact issues because these courts actually witnessed the testimony and thus have greater competence to make factual conclusions. The appeals courts could still overrule the court's legal analysis which held that the law violated the rights of children and parents. But the appeals courts will overreach if they find that the evidence supports the argument that heterosexuals make better parents.

* Because the Florida court ruled on state law grounds, the U.S. Supreme Court does not have a basis for reviewing the decision. The Supreme Court would undoubtedly reverse if it were reviewing a federal law claim. There is a much greater likelihood, however, that the Florida Supreme Court will uphold the ruling (I am going out on a limb here, but that court has been fairly progressive in recent years).

Concluding thoughts: I try to conduct this blog in a nonpartisan "keeping it real" fashion. Nevertheless, I am very pleased by this ruling! It humanizes kids and their families. That 's a nice touch in a sometimes very callous world -- don't you think?


Michael said...

Thanks Prof. That was a good read. I cannot believe how silly the Florida law is. They will appeal. Do you really think the appeals courts will affirm it?

Anonymous said...

" I am very pleased by this ruling! It humanizes kids and their families. That 's a nice touch in a sometimes very callous world -- don't you think?"

I completely agree! Thanks.

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