COLUMN: The Law in Real Life: Florida Ruling Indicates Bans on Gay Adoption Lack Logic and Relevance

COLUMN: The Law in Real Life

by Linda Holmes, J.D.

Florida Ruling Indicates Bans on Gay Adoption Lack Logic and Relevance

Sept. 29, 2008

There comes a moment when the view of an unpopular law crosses the line to embarrassing; when the thinking behind it has been so thoroughly repudiated that its defense becomes awkward. In a world where so many children are being raised by so many gay parents, Florida’s law entirely banning adoption by gay parents slides closer to this line every year.

One of the things that can speed a law’s acceleration toward irrelevance is judges’ refusal to enforce it. That’s what happened recently when a Florida judge declared the law unconstitutional and approved the adoption of a boy by the gay man who has cared for him since 2001 (when the boy was 5 years old) as a foster parent and who has been his permanent guardian since 2006.

The judge detailed the boy’s ordinary existence at home (his adoptive father’s partner called it “borderline boring”) and recalled the bigotry that surrounded the passage of Florida’s law against gay adoption during the reign of Anita Bryant as Florida’s anti-gay crusader in the 1970s, as well as the words of those who warned against embracing prejudice at the expense of children who might never have homes as a result.

The boy’s five years before his removal from his birth parents were severely troubled; the judge described the testimony of a psychologist who recognized the boy’s remarkable progress in the home his fathers provided but also recognized that he lived with unnecessary uncertainty and impermanence because he was old enough to know that legal guardians and legal fathers are not the same. This situation created anxiety and pain, the doctor said, for a child who hardly needed more.

After reviewing extensive research demonstrating no difference in the happiness or adjustment levels of children with gay parents and straight parents, the judge stated, “The Court is unable to discern any coherent explanation for [the ban’s] enforcement in 2008, other than a willingness to passively leave intact the ban against this politically disfavored group.”

The judge also described the peculiar cruelty of Florida’s system, which allows a gay person to become a permanent guardian — to keep the child in his or her home, exactly as a parent would — but denies the child and parent a legally recognized relationship. “This means that while a court may, as here, permanently place a child with a gay couple until he becomes an adult, the child cannot legally become a part of the family with whom he lives,” the judge said.

The judge found the ban on gay adoption unconstitutional for several reasons. The first was that it was a “special law,” essentially one created to punish a particular group for reasons not rationally related to its purpose. Somewhat similarly, the judge found that the ban was a bill of attainder. While a bill of attainder is commonly seen as a law that punishes a person by name, it also can be aimed at a group.

Finally, the court held that the gay-adoption ban violated the separation of powers between the legislative and judicial branches of government. Generally, it is the place of courts to evaluate adoptions, and the court held that by enacting an irrational, absolute rule against gay parents adopting, the legislature usurped authority that should rest with courts to evaluate the interests of children.

Florida’s attorney general, Bill McCollum, understandably has no plans to appeal the ruling. He is, however, defending the ban in another case scheduled for trial next month.

State Ban Has Critical Flaws

So far, courts have held that states may favor homes headed by heterosexual couples as the “ideal” family structure without presenting any evidence other than grand declarations of tradition and may rule out other homes. This is not what Florida does: Florida allows adoption by single parents, provided they are heterosexual.

Some believed that Lawrence v. Texas, the U.S. Supreme Court case overturning the Texas sodomy law and holding essentially that being gay may not be outlawed, would provide relief from discrimination in adoptions. But even after Lawrence, an 11th Circuit panel ruled, in Lofton v. Secretary of the Department of Children and Family Services, that Florida’s ban was constitutional. Even if the state cannot outlaw sexual activity by gay people, the court reasoned, it “has a legitimate interest in encouraging [an] optimal family structure by seeking to place adoptive children in homes that have both a mother and father.” This, despite the fact that Florida’s law discriminates between single-parent homes based on whether the single parent is gay or straight, which is discrimination that can have nothing whatsoever to do with “seeking to place adoptive children in homes that have both a mother and a father.”

Waxing rather rhapsodic about the two-parent family structure that itself dumps so many children into foster care to begin with, the Lofton decision notes that “the accumulated wisdom of several millennia of human experience [has not] discovered a superior model.” Of course, if the “accumulated wisdom” on a particular point freezes the right answer in place, wisdom presumably stops accumulating. As long as states may outlaw other family structures, they cannot learn whether they work.

Ban Sure to Leave Shameful Legacy

Interestingly, the argument often made in favor of the ban is that a child benefits from having both a male and female parent in order to develop properly, but the ban rules out some adoptions in which that would occur. For instance, a gay man and the straight woman with whom he shares a close, platonic relationship can not adopt and raise a child together in Florida. It may sound like a surprising hypothetical, but consider pop singer Clay Aiken, who recently discussed his homosexuality publicly for the first time. Aiken chose to have a child with a female friend and raise the child with her. In this case, the child is biological, but certainly it’s not out of the question that a gay man and a straight woman might make a similar choice to raise an adopted child together. If the true motivation for the statute were to provide a parent of each sex in any adoption, Aiken and his friend should be able to adopt as a couple. In Florida, they can’t.

That the ban misses the mark in so many ways — too broad here, too narrow there, disallowing what its purported justification should allow while allowing what should be prohibited — is a strong indication that the ban exists for reasons other than those put forth to defend it.

The fact that a state, in 2008, still bans gay parents from adopting; that it places this badge of disfavor on families while gratefully allowing them to make the sacrifices that parenting requires on behalf of children who otherwise would have no homes; that it compelled living, breathing children to languish in foster care by prohibiting their adoption into willing, stable, perfectly ordinary homes — all of this will be an embarrassment someday, the way antimiscegenation statutes are now. The slide of the adoption ban into a historical footnote is inevitable. The question is only how many children will go without homes and parents while it remains on life support.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.