Polk Law Blog

As has been widely reported by now, the 3rd District Court of Appeals has ruled that Florida’s ban on adoptions by homosexuals is unconstitutional. (Read the opinion.) Florida is the only state in the country that has such a ban, but homosexuals are allowed to be natural parents, legal guardians, foster parents, teachers, day care center owners, etc…

The opinion by Judge Cope is pretty straightforward, but I’d like to explain some of the concepts involved to highlight a few interesting things about it.

How was the gay adoption ban challenged?

The statute was challenged as being a violation of Art. I, § 2, of the Florida Constitution:

SECTION 2. Basic rights.—All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property . . . .

Although the words “equal protection” are not used in the provision, this clause is (roughly) the Florida equivalent of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, which reads:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

When a court considers whether a statute is constitutional, it applies one of two tests. One test is called “strict scrutiny,” the other “rational basis review”. Under the strict scrutiny test, the state has a very high burden to show why it needs the law in question. Under the rational basis test, there need only be some sort of logical basis for the law that is rooted in a legitimate state interest. Getting rid of a statute is much easier to do if strict scrutiny analysis applies, and much harder if rational basis review is used. (There is actually a third test that is a hybrid of these two called intermediate review. It is a little beyond what we need to understand what happened here, so I am going to ignore it for now.)

Does rational basis review or strict scrutiny apply in this case?

Strict scrutiny only applies to cases involving what is known as a “suspect class”, a class of people that has been historically treated very badly. So far, the courts have only recognized race, color, or national origin as suspect classes. Laws that treat people of different races differently will be subject to strict scrutiny. Strict scrutiny also applies when a law infringes on a “fundamental right.” For example, a law that restricts speech will be subject to strict scrutiny because the freedom of speech is a fundamental right.

In this case, there are two possible ways that strict scrutiny could apply. If homosexuality were deemed a “suspect class”, strict scrutiny would apply. Also, if the right to adopt a child were deemed a “fundamental right”, strict scrutiny would apply.

One of the interesting things about this case is that the Mr. Gill did NOT seek to have homosexuality deemed a suspect class. Nor did Mr. Gill seek to have the right to adopt declared a “fundamental right.” (This all actually happened at the trial level, not in the appeal). So the court never addressed these questions – it applied rational basis review, which gives the state a lot more leeway to make laws as it sees fit.

This was a smart move by the plaintiff. The chances of the court declaring homosexuality to be a suspect class were nil, and the argument about adoption would have been an uphill battle.

Under the rational basis test, the statute will be allowed to stand if the state can articulate even a theoretically logical reason for the statute. This is, usually, a pretty easy thing to do.

Does this statute have a rational basis?

This is the part that I find most interesting about this case. The justification for this statute (whether you agree with it or not, and, for the record, I do not) is very obvious: some people, including the Florida Legislature in the 1970′s, simply do not think that homosexuals are fit to be parents because they believe homosexuality is immoral. What this case probably should have been all about is whether that position is a rational position. But it was not about that at all! The court didn’t look at this justification in any way. It focused on other things! Why leave out something this obvious? From the opinion:

Given a total ban on adoption by homosexual persons, one might expect that this reflected a legislative judgment that homosexual persons are, as a group, unfit to be parents.

No one in this case has made, or even hinted at, any such argument. To the contrary, the parties agree “that gay people and heterosexuals make equally good parents.” “The qualities that make a particular applicant the optimal match for a particular child could exist in a heterosexual or gay person.” Thus in this case no one attempts to justify the prohibition on homosexual adoption on any theory that homosexual persons are unfit to be parents.

The court didn’t address it because the State of Florida just didn’t want to go there. They made a conscious decision not to defend this statute on the most obvious grounds on which it might be defended.

Why would the state do this? Perhaps the powers that be simply do not agree with the statute any more. Perhaps they wanted to avoid the sort of spectacle that was the recent gay marriage case in California. Who knows? But, for whatever reason, they pulled a punch in this case which made it easier for the plaintiff to win:

Instead, the Department argues that there is a rational basis for the prohibition on homosexual adoption because children will have better role models, and face less discrimination, if they are placed in non-homosexual households, preferably with a husband and wife as the parents.

From this standpoint, the court was persuaded that that the rational basis standard didn’t save this statute. The court easily pointed out the flaws in the argument for rationality in this, the meat of the opinion:

As previously stated, the   statute specifically allows adoption by an unmarried adult. § 63.042(2)(b). Single parent adoption has been allowed under the Florida Adoption Act, enacted in 1973, and predecessor statutes. § 63.042(2)(b), Fla. Stat. (1973); ch. 73-159, § 4, Laws of Fla.; § 63.061, Fla. Stat. (1967); § 72.11, Fla. Stat. (1943). One-third of Florida’s adoptions are by single adults. Appendix ¶ 2. The Florida Statutes do not restrict adoption to heterosexual married couples.

The statute contains no prohibition on placing children with homosexual persons who are foster parents. The Department has placed children with homosexual foster parents in short-term placements, and long-term placements. Appendix ¶¶ 25-26. The average length of stay in foster care before adoption is thirty months. Appendix ¶ 38.

Florida also has a guardianship statute. Ch. 744, Fla. Stat. Homosexual persons “are not prohibited by any state law or regulation from being legal guardians of children in Florida.” Appendix ¶ 27. The Department has placed children in the legal guardianship of homosexual persons. This has included permanent guardianships in which the Department ceased supervision. Appendix ¶ 29.

It is difficult to see any rational basis in utilizing homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on adoption by those same persons.

(Note: the court also considered the expert testimony presented at trial on whether being raised by homosexual parents affects children negatively, but I addressed that in a previous post on this case.)

What happens next?

This decision came from an appeals court in Miami and its precedential value in other parts of the state might be disputed. The case might be appealed to the Florida Supreme Court, which could issue a final word. But the governor has announced that the state will not attempt to enforce the law from now on. I am not sure whether that means they will also not seek to appeal it, but it probably means that. We’ll just have to watch the news and see, but in light of the governor’s announcement, I do not think an appeal is likely.

What could happen, however, is that a new administration might start trying to enforce the law again, which would result in a new lawsuit that must reconcile, distinguish, or challenge this decision in its analysis. In that new lawsuit, the arguments that were not raised in this one might come up. I don’t think that is likely either, but it could happen.

The Department of Children and Families REALLY likes for children to get adopted. It saves money, looks good for the numbers, and it is, in general, a very positive thing for the kid. There are far more troubled kids than homes for them to go to, and now that there is a good legal excuse not to try to enforce this statute, I think it would take a pretty hard core administration to want to open up this can of worms again. But that’s just me and my crystal ball talking.

Questions raised.

I think this case raises two interesting academic questions. The first one is, if, in addition to being prohibited from adoption, homosexuals were also prohibited from serving as guardians and foster parents, and were deemed unfit parents by law across the board, would this case had come out the same way? It might have, but the court could not have used the justification it used.

Second, what would the court have done, as suggested above, if the state had attempted to assert simply that homosexuality is morally wrong as the rational basis? For the court to substitute its own judgment of morality for the legislature’s is quite a reach, legally speaking, and would have made this a much more interesting situation. To those that criticize this decision on the grounds that these are “activist judges” – that might have had some teeth if this hypothetical had played out, but the way this one was actually argued, I think the judges in this case made a pretty straightforward and correct legal call.

What do you think?