Here’s the last word on the Gill case, one I’ve talked about a number of times. There will be no appeal from the appellate court decision. Lesbians and gay men can adopt children in Florida. This means lesbians and gay men will no longer have to engage in complicated (and expensive) workarounds. It also means lesbians and gay men in Florida who have been serving as foster parents can make those relationships permanent.
I was struck, however, by what Bill McCollum, the state attorney general, said in announcing that he would not appeal. Here’s the coverage from the Miami Herald:
“The constitutionality of the Florida law banning adoption by homosexuals is a divisive matter of great public interest,” McCollum said in a statement. “As such, the final determination should rest with the Florida Supreme Court, not a lower appellate court.”
But after a review, he said he concluded “this is not the right case to take to the Supreme Court for its determination.”
McCollum, who leaves office early next year, said he hopes “a more suitable case will give the Supreme Court the opportunity to uphold the constitutionality of this law.”
Perhaps it is worth noting that McCollum personally opposes allowing lesbians and gay men to adopt. But what I find most interesting is his suggestion that a “more suitable case” might come along that would give the state supreme court an opportunity to uphold the ban.
What was unsuitable, from his point of view, about Gill’s case? I assume it was that in this case the adoption was so clearly the right thing for the children as well as the adults involved. Given the facts here, it’s hard to imagine a court saying “no, you cannot be a parent to these children.” Cases like Gill are the ones that show the irrationality (and even cruelty) of a rule barring all lesbians and gay men from adopting. This is the kind of case that is most suitable for considering the constitutionality of a blanket ban. It is just that consideration doesn’t yield the result desired by Mr. McCollum.
No one would argue that every lesbian or gay man should be allowed to adopt. Undoubtedly there are individuals (lesbian or gay as well as straight) who should not qualify as adoptive parents. But the fact that there may be some individuals who do not qualify cannot justify barring all individuals. If that were so, there would be no one left to adopt. It just means there need to be individualized determinations on a case-by-case basis.
I suspect Mr. McCollum is simply trying to save face here. He chose not to appeal, which means that law, though still on the books, cannot be enforced. It would be nice if the legislature confirmed the ruling by repealing the law, but I don’t really think there’s much danger of another court reviving the ban.