Wednesday, September 22, 2010

Florida appeals court finds ban on gay and lesbian adoptions unconstitutional

In a long-awaited ruling, the Florida Third District Court of Appeal, in In re Adoption of X.X.G. & N.R.G. (usually referred to as the Gill case), has declared the state's ban on adoption by gay men and lesbians unconstitutional. The three-judge panel unanimously upheld the trial court's ruling and held that the ban violated the Florida constitution's guarantee of equal protection. The court applied the "rational basis" test, under which a statute that classifies people (such as gay and non-gay in this case) must be upheld if the classification bears a "rational relationship to a legitimate governmental objective." There must be, the court said, a real difference (emphasis in opinion) between the two groups that is reasonably related to the purpose of the rule. The ruling turned largely on the fact that Florida allows gay men and lesbians to be foster parents and legal guardians, that the Department of Children and Families agreed that "gay people and heterosexuals make equally good parents," and that all adoptions are based on a case-by-case evaluation of a child's needs and the circumstances of the prospective adoptive parents.

If you think you've heard about many challenges to Florida's ban, it's because you have. There have been cases going through both the state and federal courts for the last 15 years. In the most outrageous of the rulings upholding the ban, the federal 11th Circuit Court of Appeals in the Lofton case ruled that Florida could believe that children do best with married heterosexual parents and that it was rational to place children with single parents in spite of that preference (which the state does 34% of the time) because a single heterosexual parent might get married one day! More recently, several trial court judges have been granting individual adoptions in spite of the ban.

The most distinguishing characteristic of the Gill litigation is that there was an actual trial with direct and cross examination of witnesses. (This is the fact that also distinguishes the Perry marriage litigation from other cases challenging the ban on same-sex marriage.) In addition to the overwhelming evidence of the well-being of the children in the Gill home (the concurring judge called the steps taken by Gill and his partner to address the needs of the children "nothing short of heroic"), the ACLU lawyers representing Gill presented 10 expert witnesses and the state presented two. One of the state's two witnesses was Dr. George Rekers, since discredited in a "rent boy" scandal; the other was a professor whose analysis of the relevant mental health research was flawed but who, more importantly, testified that he opposed the categorical ban and believed that judges should rule on adoptions by gay men and lesbians on a case-by-case basis! Basically what is has come to is that no reputable social science expert can testify that gay men and lesbians should never be able to adopt children.

The state did not argue that gay people are unfit to be parents. It made arguments about married heterosexuals being better role models and about gay homes being less stable and more prone to domestic violence. On the latter points, the opinion points out the expert testimony to the contrary. On the former, the opinion quotes from the trial court's ruling and emphasizes in bold (I love when they do this!) that the research shows "no differences in the parenting of homosexuals or the adjustment of their children." And on the further argument about the risk of discrimination and stigma, the court points out the fallacy of relying on this argument since the state allows foster placement and legal guardianship.

It's common for pro-gay court rulings to end with a conclusion that the discrimination must be based on animosity to gay people, which by itself cannot be the only reason for a law. This opinion is silent on this subject. Only the concurrence refers to the passage of the ban in 1997 "in haste," and it doesn't mention Antia Bryant and her hateful campaign that referred to gay people as, among other things, "human garbage." What I love about this opinion is that it doesn't need to do that. There needs to be a rational basis for this law and there isn't. Nothing more needs to be said...although it does ultimately need to be said by the Florida Supreme Court.

I know there have been questions about whether the state would appeal this decision. It should. A ruling from the Florida Supreme Court will throw the law out for good. Leaving this ruling to stand would affect only part of the state and would leave the legal issues in limbo. We can win this one. I have complete faith in Leslie Cooper and the other amazing ACLU lawyers. And I guess I have great faith in the power of rational thinking, although why I retain that faith, given how often irrational arguments about gay people prevail, could well be open to question. Still, today, let's celebrate!

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