Polk Law Blog

In light of the recent decision in Perry v. Schwarzenegger, a California federal case released yesterday that finds state bans on same sex marriage unconstitutional, I thought it would be interesting to check in on a gay rights issue that has implications closer to home: adoption.

In Florida, unlike any other state in the entire country, homosexuals are subject to a blanket prohibition from adopting children. Some people think, incorrectly, that the ban only applies to homosexual couples. This is not the case. In Florida, a homosexual may not adopt a child, period:

“No person eligible to adopt under this statute may adopt if that person is a homosexual.” Fla. Stat. sec. 63.042(3).

But the constitutionality of this statute has been successfully challenged in several court cases in the past few years, including one in which an appellate decision is imminent.

A Key West judge first held the statute unconstitutional in 2008, but the state elected not to appeal. (Source: Palm Beach Post). That meant that the adoption stood, but the decision has no real precedential value.  One may speculate (and, as far as I know, this is pure speculation) that the decision was not appealed because the State was concerned that it would lose the appeal, thus firmly striking down the law.

On November 25, 2008, Miami-Dade County Circuit Court judge held the ban to be unconstitutional. This time, the State of Florida appealed. In this case, Martin Gill, a gay man in Miami raising two foster children with his long-term partner, sought the right to adopt. That the children were doing very well with him and had bonded with him and his partner was not disputed. The court made the following factual findings related to gay parents:

“Based on the evidence presented from experts from all over this country and abroad, it is clear that sexual orientation is not a predictor of a person’s ability to parent. Sexual orientation no more leads to psychiatric disorders, alcohol and substance abuse, relationship instability, a lower life expectancy or sexual disorders than race, gender, socioeconomic class or any other demographic characteristic… These conclusions have been accepted, adopted and ratified by the American Psychological Association, the American Psychiatry Association, the American Pediatric Association, the American Academy of Pediatrics, the Child Welfare League of America and the National Association of Social Workers. As a result, based on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.” In Re Adoption of Doe and Doe, Final Judgment of Adoption, p. 35-37 (Nov. 25, 2008).

Applying the law to these findings, the court found:

“Here, Fla. Stat. §63.042(3) violates the Children’s rights by burdening liberty interests 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. This Court cannot permit such a double-edged sword to continue to lie dormant in our state law, to the peril of children like John and James, without review. The challenged statute, in precluding otherwise qualified homosexuals from adopting available children, does not promote the interests of children and in effect, causes harm to the children it is meant to protect. There is no question, the blanket exclusion of gay applicants defeats Florida’s goal of providing dependent children a permanent family through adoption.” (Id. p. 44-45).

The state argued that the law promotes the well being of children, avoids children being subjected to social stigma, and upholds public morality. All three arguments were rejected:

“[T]he evidence proves quite the contrary; homosexuals are no more susceptible to mental health or psychological disorders, substance or alcohol abuse or relationship instability than their heterosexual counterparts. Accordingly, such governmental interest does not justify the legislation…

The Department’s position is that homosexuality is immoral. Yet, homosexuals may be lawful foster parents in Florida and care for our most fragile children who have been abused, neglected and abandoned. As such, the exclusion forbidding homosexuals to adopt children does not further the public morality interest it seeks to combat.” (Id. at 49-51).

This case is now up for appeal at the 3rd DCA where oral arguments were held in August 2009. A decision is imminent. The court file is not available online because it is an adoption case, but the most important filings, including the briefs filed on behalf of the parties, are available from the ACLU.

In February of this year, another adoption by a homosexual was approved in Miami-Dade County, and the state again elected not to appeal, letting the adoption stand. (Source: Palm Beach Post)

In my view, like that of the trial judge, any argument that the state might assert is negated by the fact that it allows homosexuals to be foster parents. This is a logical absurdity. I think the decision will be affirmed on appeal, but in reaching the decision, the appellate court is likely to focus on the rights of the children and the absurdity of the conflicting laws as opposed to the constitutional rights of the foster dad, and rule on as narrow a ground as it can rather than making any sweeping generalities about bigger constitutional questions.

The recent marriage decision out of California, in stark contrast, goes far beyond what is strictly necessary to strike down the statute. If you are more curious about that decision, an interesting take on it may be found by U. of Minn. law professor Dale Carpenter at the Volokh Conspiracy.