Appellate Court Strikes Down Florida Adoption Restriction

I’ve had a bunch of posts recently about Florida’s law barring lesbian and gay people from adopting.   It’s come up as a political issue as well as a legal one.   

Three different trial courts have approved lesbian/gay adoptions in specific cases.   Now one of those cases has been decided by an appellate court.   Like the lower court, the appellate court found the statute violated the constitution (that would be the Florida state constitution) and struck down the restriction, allowing the adoption to stand. 

I’ve written about this case before, but it doesn’t hurt to restate the facts since that is where the court begins.   All parties agreed about the basic facts.  Martin Gill (the appellate court uses only initials, but he has been identified in earlier press coverage) became a foster parent  for two boys who were four months and four years old in 2004.   The boys had been removed from their original home by the Department of Children and Families.   (Lesbian and gay people are permitted to be foster parents in Florida.)  

The appellate court continues: 

The children arrived with medical problems and other needs.   [One child] arrived wearing a dirty adult-sized t-shirt and sneakers four sizes too small.   Both children were suffering from ringworm and the four-month-old suffered from an untreated ear infection.   …[T]he four year old did not speak and his main concern was changing, feeding and caring for his baby brother.  

The children thrived in [Gill’s] household.   ‘It is clear to this Court that [Gill] is an exceptional parent to [the children] who have healed in his care and are now thriving.'”  (internal quotation from the trial court).

In 2006  the original parents’ rights were terminated, which made the boys eligible for adoption.  Gill applied to adopt them.   It was agreed by the parties that, but for the Florida statute in question, his adoption would have been approved.   I

n 2008, after a four day trial that included expert testimony on the relative parenting abilities of lesbian/gay as well as heterosexual parents, the trial court permitted the adoption.   The state appealed, arguing that the restriction was rational.   This required the appellate court to determine whether there was a real difference between lesbian/gay and heterosexual parents and, if there was, whether that difference was reasonably related to the state’s interests in regulating adoption.  

It’s worth noting, as the appellate court did, that people with criminal histories or histories of drug abuse are not categorically barred from adoption, but rather are considered on a case-by-case basis.  The only categorical exclusion is that for lesbian/gay people.   It’s that exclusion the state had to justify in court.  

Given that the parties agreed that “gay people and heterosexuals make equally good parents” it’s hard to see how the state could possibly succeed, but it did make an effort.  It argued the categorical exclusion was justified because children would have better role models and face less discrimination if placed in non-homosexual households, preferably with a married husband/wife.   What made that a hard sell is that the state allows unmarried individuals to adopt.  (As I’ve discussed elsewhere, there are some states that do not allow unmarried individuals  couples to adopt, but Florida is not one of them.)   Florida also allowed lesbian and gay people to become foster parents and guardians.   

The trial court had held an evidentiary hearing at which Gill offered testimony supporting the parenting abilities of lesbian/gay people while the state offered competing witnesses.  The trial court made findings favorable to Gill.  

The main defense of the state was that it needed very little justification for its ban.   It’s true that when court’s evaluate statute’s on a rational basis analysis very little justification is needed.  But the appellate court here found even that very little was lacking.   The one expert who clearly supported the state (Dr. George Reker, who gained a certain amount of notoriety after this case was heard) was essentially discredited.  

In the end the appellate court concluded, as the trial court had, that there was no legitimate justification for a blanket ban on adoption by lesbian and gay people.   If the state chooses to further appeal, the case will go to the Florida Supreme Court.   It’s hard to know if that will happen, but it does seem that the one categorical ban on lesbian/gay adoption is teetering on the brink.


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