Nancy Polikoff

Florida appeals court finds ban on gay and lesbian adoptions unconstitutional

Filed By Nancy Polikoff | September 22, 2010 1:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: adoption ban, Florida, gay adoption

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 unconsititutional. haringfam-750782.jpgThe 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 presenting 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 of adoptions by gay men and lesbians on a case-by-case basis.

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Its about time! Poor Anita Bryant!

I hear that Crist might not appeal too. If so, the decision is final, correct?

Yes, but it won't be definitive. This appeals court only covers part of the state. In other parts a court could rule differently.