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Adoption Rights for Gays and Lesbians in Florida: A Trial Court Rules That the State's Longstanding Ban Must End


Tuesday, December 09, 2008

The only statute in the nation that bans gays and lesbians from adopting children has just been ruled invalid by a Florida state court judge. The thoughtful, well-reasoned ruling came from Judge Cindy Lederman, and the case was In re Adoption of Doe.

In striking down the ban, Judge Lederman rightly reached a result that a federal appellate court had inexplicably avoided, several years ago, in considering a challenge to the same statute. This column will explain the state court ruling, how it differs from the federal appellate court's ruling, and why this development brings Florida more in step with other states' approach to adoption.

The Florida Statute At Issue

The Florida law at issue in was enacted in 1977, a result of former Miss America (and orange juice spokeswoman) Anita Bryant's nationwide campaign to roll back civil rights for gays and lesbians. (This history is vividly remembered in the recently-released movie Milk, which, in telling the story of the murder of one of the first openly gay public-office-holders, chronicles the fight over Proposition 6 - an anti-gay-rights referendum pushed by Bryant but ultimately defeated in California.)

The law provides, simply, that "No person eligible to adopt under this statute may adopt if that person is a homosexual." By interpretation, the law was limited to "practicing" homosexuals, but it was routinely enforced against gays and lesbians who tried to adopt. The statute is remarkable in its targeted exclusion of homosexuals. No other group of individuals, not even convicted felons, is singled out for the same treatment.

The Prior Federal Court Challenge

Four years ago, the U.S. Court of Appeals for the Eleventh Circuit declined to strike down the gay adoption ban in the case of Lofton v. Secretary of the Department of Children and Family Services. There, several gay men who served as foster parents in the Florida system challenged the law that precluded them from becoming adoptive parents. The named plaintiff in the case was Steven Lofton, a registered nurse who sought to adopt a boy, born HIV-positive, who had been in his care since the boy's infancy. Lofton's petition to adopt was denied under the statutory ban on adoption by homosexuals, and he challenged the denial in federal court.

The federal district court ruled against Lofton and the other plaintiffs, rejecting all their constitutional challenges. While the case was pending before the Eleventh Circuit, the U.S. Supreme Court decided Lawrence v. Texas, a landmark case that invalidated a criminal same-sex sodomy ban as a violation of the Due Process Clause's right to privacy.

While the full import of Lawrence is still not clear - even now, five years later - it is plain that the ruling robustly protected the right of individuals to engage in sexual intimate relationships without interference by or penalty from the state. It thus seemed to be a virtual no-brainer that a law precluding all practicing homosexuals from adopting - regardless of their fitness to parent or any effect on the would-be adopted children - could not survive a Lawrence challenge.

Nor should Florida's law survive a Romer v. Evans challenge. Romer was a 1996 ruling in which the U.S. Supreme Court struck down an anti-gay statute in Colorado under the Equal Protection Clause. Although classifications on the basis of sexual orientation do not currently receive heightened judicial scrutiny, the Court in Romer ruled that laws clearly "born of animosity" to a particular class could nonetheless be struck down. As noted above, the Florida gay adoption ban fits the bill - singling out gays as supposedly improper to adopt while leaving in felons as if they were proper.

Yet, despite these obvious constitutional flaws in the Florida law, the Eleventh Circuit upheld it in Lofton. As I have explained in greater detail in a previous column, the court misapplied Lawrence and took a head-in-the-sand approach to understanding both the intent and import of Florida's categorical ban on gay adoption. Disappointingly, too, the U.S. Supreme Court declined to review the case, leaving the Florida law intact by virtue of a dubious federal court ruling.

The Florida State Court Case: In re Adoption of Doe and Doe

It is against this backdrop that the current Florida state court case was litigated. The plaintiff in Doe, like those in Lofton, was a gay man seeking to adopt two brothers he had been raising for several years. Martin Gill took in the boys in December 2004, after the child protection investigator pleaded for the children to have "a good Christmas." Gill was a licensed foster care provider and agreed to take the boys in while the state sought a permanent placement for them. But after their natural parents had their rights terminated, and the children became adoptable, Gill sought to become their permanent legal father.

The Florida state court considered a variety of legal challenges to Florida's gay-adoption ban in Doe, but the bulk of the opinion - and the four-day trial upon which it was based - focused on the scientific evidence about how children fare when raised by gays and lesbians, versus when raised by straight parents. In striking down the Florida law, the court ruled, in short, that the "best interests of children are not preserved by prohibiting homosexual adoption." It focused on the rights and interests of two parties: the children in need of homes, and the adults seeking to adopt them.

By law, the state of Florida is required to provide dependent children with a stable and permanent home, and has an obligation to seek adoptive placements - considered the "highest and preferred form of permanency" - as rapidly as possible. The children also have a liberty interest in avoiding unnecessary confinement in foster care. Yet the adoption ban at issue, the court reasoned, burdens those interests of the children by "unduly restraining them in State custody on one hand and simultaneously operating to deny them a permanent adoptive placement that is in their best interests on the other."

The rights of would-be adoptive parents are also infringed by the Florida law, according to the court in Doe. Under the equal protection clause in Florida's state constitution, individuals have the right not to be subjected to irrational legal classifications. The rationality of the Florida law turns on the relative fitness of gays and lesbians to raise children. Though the court in Doe noted that similar challenges had failed, both in prior state cases and in Lofton, it found that current scientific research, the state of which was robustly developed at trial, showed the irrationality of the state's categorical exclusion. The state tried to show that homosexuals have higher rates of alcohol abuse and relationship instability, but the court found their evidence outweighed by that of the challengers. The bottom line, according to the court, was: "It is clear that sexual orientation is not a predictor of a person's ability to parent."

Without a factual basis for preferring non-gay adults as adoptive parents, the state cannot constitutionally draw such a distinction. The court rejected "morality" as a legitimate governmental interest, and found, with respect to the claim that children are stigmatized by having gay parents, that "there is a well established and accepted consensus in the field that there is no optimal gender combination of parents." (I wrote in a prior column about the American Academy of Pediatrics' support for co-parent adoptions by same-sex partners.) The court concluded that it is thus a violation of equal protection to exclude potential adoptive parents based on nothing more than their sexual orientation. Instead, it held, gay and lesbian adults have the same right to petition to adopt and survive or fail the case-by-case scrutiny that comes with any such petition.

Other Challenges on the Horizon for Gays and Lesbians Seeking to Become Parents

Just as the Florida ban was being invalidated, voters in Arkansas passed a referendum designed to prevent gays and lesbians from adopting children. The new law, Act 1, accomplishes this result indirectly, by preventing any individual who is "cohabiting with a sexual partner outside of a marriage which is valid under the constitution and laws of this state" from adopting or becoming a foster parent to a child. Since same-sex marriage can neither be celebrated nor recognized in Arkansas, this law deprives gays and lesbians from adopting unless they remain single. It also deprives many children of placements, since, according to Arkansas Families First, there are three times as many children in need as there are would-be parents.

The Arkansas law is already the subject of a legal challenge, but the facial neutrality of the law - that is, the fact that it does not expressly mention gays or lesbians - makes it more difficult for the challengers to prevail. Even if the law was passed with full knowledge of its harsh and disproportionate effect on gays and lesbians who cannot legally marry for purposes of this statute - which seems very likely - its facial neutrality will still be a factor that may convince a court to keep it on the books.

Nationwide, the law is still a patchwork on the issue of joint, same-sex adoptions. Still, it's quite clear that the Arkansas law is an outlier. Mississippi bans adoptions by same-sex couples, and Utah bans adoption by all unmarried couples. But many states expressly permit same-sex couples to adopt; others have not considered the question either legislatively or judicially, but permit such adoptions in practice. The nationwide trend is distinctly in favor of broader parenting rights for same-sex couples.

The Fate of the Florida Law: Why Reviving It Would Be a Grave Error

The Florida law could be revived in either of two potential rounds of appeal; the state has already filed its notice of appeal. To do so would be a mistake, however; it would unnecessarily return gays and lesbians in the state to a degree of second-class citizenship that no other state permits and simultaneously deprive many children languishing in the foster care system of permanent, stable homes. That era of discrimination against would-be parents and deprivation for children hoping to be adopted should stay buried.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University and is currently a visiting professor of law at Vanderbilt University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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