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December 4, 2008

Florida Court Rules Gay/Lesbian Adoption Ban Unconstitutional

I have posted about Florida's adoption ban in the past.  Florida is the only state that expressly prohibits a gay or lesbian individual from adopting a child (other states might prohibit two same sex partners from adoption, but not an individual).

This ban has caused irreperable harm to many foster children because their loving potential parent has been unable to adopt them until this recent decision.

The Miami-Dade County Circuit Court ruled that the ban is unconstitutional on November 25, 2008.  In re Adoption of Doe, No. 06-033881 (Fla. Cir. Ct. Nov. 25, 2008).  The court reconsidered the issue despite the fact that the Eleventh Circuit Court of Appeals upheld the statute against an equal protection challenge in Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004).  Judge Lederman noted that the Lofton decision stated that any studies about gay parenting were inconclusive and not well founded scientifically at that time.  Id. at 47.  She noted, however, that much has changed since 2004 and studies are now more conclusive.  Id.  Although the statute does not infringe upon a protected class and only merits rational basis review, she found that the state's asserted interest (in public morality) does not withstand even this lower scrutiny.  Id. at 52.  The court found that moral preference against homosexuality has no bearing on whether gay or lesbian individuals can adopt because many homosexual individuals serve as foster parents in Florida to abused children and permitting them to adopt those children (in particular) does not serve any state interest whatsoever. Id. at 51-52.

Hooray for Judge Lederman!  However, we must wait and see whether the decision is appealed and, if so, what the higher court will do.

December 4, 2008 | Permalink

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Posted by: Stella | Dec 5, 2008 8:36:03 AM

There is some discussion that an appeal in this case may be taken directly to the Florida Supreme Court. Two recent--very conservative--appointments to the Court by Gov. Crist do not bode well for the cause.

Judge Lederman also made much of the childrens' rights in her opinion. This is a new strategic direction in the argument that might find some traction, even with conservatives.

Another decision in Monroe County, Florida (Key West), in September, also declared the Florida adoption ban unconstitutional. That argument was grounded, in part, on the novel argument that the law is effectively a bill of attainder. The state did not appear at the adoption hearing, and did not appeal that decision.

Becky Salokar
Florida International University,
Assoc. Prof., Political Science & 3L, College of Law
Miami, Florida

Posted by: Becky Salokar | Dec 8, 2008 11:48:01 AM

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