Florida Lesbian/Gay Adoption Ban Argued

Yesterday an appellate court in Florida heard arguments in a case challenging the state’s ban on lesbian/gay adoption.   I wrote about the case some time ago when it was decided by the trial court.  

Frank Martin Gill has been a foster parent to two boys for over five years.   In 2006 he sought to adopt the boys.  Florida, however, has the most sweeping prohibition of lesbian/gay adoption of any state in the US.   (This is the legacy of Anita Bryant.)  Lesbians and gay men, whether single or in pairs, cannot are barred from adoption in Florida.  

The trial judge in Gill’s case found that this bar was irrational and struck it down.   The state appealed the ruling and that’s what was argued yesterday.

The account of the argument is interesting for any number of reasons.   I want to focus on the state’s apparent determination to focus on the general rather than the specific.   By this I mean that the state apparently did not (and likely could not) argue that adoption would be bad in the particular case before it.  

Indeed, the state conceded that allowing the boys to remain with Gill and his partner would be in their best interests.    And though the article does not say so, I should think the state would have to concede that if the boys are to remain with Gill, it is better for Gill to actually have the web of legal rights and obligations that adoptive parentage would bring.  

Rather than argue about the particular family at issue in the case, the state chose to focus on broad (and highly debatable) general arguments about the suitability of lesbians and gay men as parents.   Assuming for the moment that the generalized arguments are valid (to be clear, I do not think they are, but this is for the sake of argument) the state is essentially arguing that because most lesbians and gay parents can not be good adoptive parents, these particular children should be denied the outcome that would be best for them.   That’s what I mean by choosing to argue the general rather than the specific. 

You can look at this the other way round, too, and doing that ties this back to a point I made about second-parent adoptions some time ago.    The attorneys for Gill and the boys can argue the specific equities of this case.   It is best for the boys to stay with Gill and it is best if that relationship is given legal recognition.     

 To the extent judges concern themselves with the actual people before them, Gill and his sons ought to prevail.   It’s only by focussing instead on the larger picture that the state can make any sort of argument at all.  

You can see the same dynamic at work in other cases as well.   The recent West Virigina case,  for example, is fairly similar.   The two women there Katheryn Kutil and Cheryl Hess, were foster parents to an infant.  It was obviously best for the infant that she remain in the only home she had known.   The West Virginia Supreme Court ultimately focused on the well-being of that child and ruled in favor of Hess and Kutil.  One can only hope that the Florida courts choose the same course.

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