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October 1, 2008

Florida Trial Court Judge Pronounces Adoption Law Unconstitutional

In an unprecedented move (at least in Florida), the Honorable David J. Audlin, Jr. of Florida's Sixteenth Judicial Circuit Court held the Florida adoption statute preventing gays and lesbians from adopting children unconstitutional on its face.  In the Matter of the Adoption of John Doe, Case No. Redacted (Aug. 29, 2008 16th Cir., Monroe Cnty., Fla.).

The court finds the statute unconstitutional for three reasons:

(1) It is a special law, not a general law and the Florida Constitution "explicitly prohibits special laws 'pertaining to . . . adoption of persons.'" Id. at 39 (quoting Fla. Cons. art. III, § 11(a)(16)). 

The court notes that this is a special law because it targets a group of people based on an impermissible classification.  Id. at 40.  Here, the illegal or impermissible classification was targeting a group of people "based on lawful sexual conduct alone", which bears no legitimate relationship to the legislative objective.  Id. at 41 (emphasis original).

(2)  It is a bill of attainder, or "a legislative act which inflicts punishment without a judicial trial."  Id. at 43 (quoting Cummings v. Missouri, 71 U.S. 277, 233 (1866)).  Because the "singular purpose" of the statute was to "repress gay Floridians as a group, without any consideration being given to allowing even one gay Floridian an opportunity to establish his actual ability to parent[,]" the law is unconstitutional.  Id. at 45.

(3)  It violates the separation of powers by taking away power from the courts to grant an adoption to a gay or lesbian parent even if it would be in the best interest of the child(ren) involved.  Id. at 53.

October 1, 2008 | Permalink


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So proud to know Judge Audlin.

Posted by: Hilary Cohen | Oct 24, 2008 5:23:33 PM

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