Nancy Polikoff

Florida Adoption Ban Declared Unconstitutional

Filed By Nancy Polikoff | September 10, 2008 5:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: adoption rights, Anita Bryant, Florida, gay adoption, Judge Audlin, LGBT parents, overturned laws

Florida Circuit Court Judge David J. Audlin, Jr.has granted the petition of a gay man to adopt the child who was placed in his home as a foster child in 2001 and whose legal guardians the man and his partner of 15 years became in 2006. The child is identified in the court documents as John Doe.

To grant the adoption, the judge had to find unconstitutional Florida's ban on adoption by lesbians and gay men. In so finding, the judge reviewed what was said about the ban when it was enacted in 1977 and concluded that the origin of the ban was a politically charged climate, dominated by Anita Bryant's anti-gay crusade that resulted in the repeal of the Miami anti-discrimination ordinance.

Judge Audlin addressed the decision of the 11th Circuit Court of Appeals in the Lofton case, which refused to find the ban unconstitutional. Lofton was decided based on summary judgment, which means there was never a trial with evidence presented about the validity of the ban from a best-interests-of-the-child perspective.

The appeals court in Lofton said that the legislature passing the ban might have thought it "premature to rely on a very recent and still developing body of research, particularly in light of the absence of longitudinal studies following child subjects into adulthood and of studies of adopted, rather than natural, children of homosexual parents."

After hearing testimony from adoption expert Dr. David Brodzinski, Judge Audlin concluded that the Lofton court's depiction of the research on adoption by gay men and lesbians "is, at minimum, not presently accurate." Dr. Brodzinski testified that the adoption ban was "irrational and scientifically inexplicable" and the judge said he was "unable to discern any coherent explanation for its enforcement in 2008, other than a willingness to passively leave intact the ban against this politically-disfavored group." The judge heard testimony from several other witnesses specifically about the best interests of John Doe, including John Doe himself.

The judge made the following findings:

The Court finds the foregoing facts to be true: (a) The fact that Petitioner is a gay man is irrelevant to his skills as a parent and his fitness to adopt. Irrespective of Petitioner's sexual orientation, it is in the minor's best interest to be adopted by Petitioner, (b) Floridians who are gay or lesbian are not for that reason inherently incapable of parenting an adopted child, (c) In view of the less restrictive alternative safeguards that exist, there is no need for the categorical disqualification of all gays and lesbians in Florida from adoption to ensure that no child is adopted by an inappropriate caregiver, and (d) After having listened to and read the legislative history surrounding the enactment of [the adoption ban], the Court finds that there was no non-punitive purpose for categorically excluding every single gay and lesbian Floridian from adopting children.

The judge based his determination of the law's unconstitutionality on grounds not argued in previous cases. He found that the statute was a "special" rather than a "general" law.
The particular classification scheme chosen by the legislature does not, however, bear a reasonable relationship to a legitimate state objective.

Indeed, in situations such as that here, the ban obstructs the legitimate state objective of pursuing the best interest of a legal orphan by providing him an adoptive home with a care-giver whom the State has itself deliberately over the course of many years already encouraged the child to view as his permanent parent. Most dispositively, the statutory disqualification is not based upon proper differences which are inherent in or peculiar to all Floridians who are gay. Section 63.042(3), Fla. Stat., is therefore a prohibited special law pertaining to the adoption of persons.

The judge also found that the adoption ban amounted to punishment of Floridians because of their sexual orientation and was therefore an unconstitutional bill of attainder. The opinion says, "Every Floridian who is gay or lesbian was found guilty by the legislature of being unfit to parent an adopted child without the benefit and protection of a judicial trial... Marking every gay Floridian as necessarily and irrebuttably unwholesome for the purpose of denying them the chance to be considered to raise children exceeds the authority of the legislative branch."

Finally, the judge found that the ban violated the doctrine of separation of powers because "the legislature may not employ an irrebuttable presumption that is not grounded in established fact to displace the inherent authority and concurrent jurisdiction of the adoption court to allow a petitioner to prove what is in the best interest of the adoptee. Because the categorical ban is not grounded in established fact, the absence of an opportunity to rebut is fatal."

The judge found that the adoption ban "constitutes an attempt, by legislative fiat, to enact into existence a fact which here does not, and cannot be made to, exist in actuality."

The Florida Attorney General's office did not participate in the litigation, in spite of the fact that they were notified, given opportunity to intervene, and served with all filings in the case. Whether the Attorney General will at this point appeal the decision remains to be seen.

(Crossposted from Beyond Straight and Gay Marriage)


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Before we uncork any champagne, wait a day or two to see what the Florida attorney general, a Republican conservative, decides to do about this ruling. I would be astounded, but very happy, if he decides not to appeal, but I expect more rhetorical BS about "activist" judges in order to drag more bigots to the polls. The best interests of the kid will be swept under the rug, so McCollum, Crist and ultimately McCain can continue their crusade.

Brynn Craffey Brynn Craffey | September 10, 2008 9:25 PM

I'm sorry, BeachcomberT, but just reading the words of the legal opinion "The fact that Petitioner is a gay man is irrelevant to his skills as a parent and his fitness to adopt. Irrespective of Petitioner's sexual orientation, it is in the minor's best interest to be adopted by Petitioner, I can't help myself from breaking out the champagne. :-)

It's a victory!

Except it isn't. Care to research dear old Supreme Court of Florida's record? It ain't pretty, and I can assure you the repugs, who donated 150,000 of the 190,000 needed for the marriage amendment, will appeal it to the SC.

Not saying I'm not glad that some judges make excellent legal opinions, just that sadly those are not the ones in the top of the food chain due to the design of judicial appointment...

The judge found that the adoption ban "constitutes an attempt, by legislative fiat, to enact into existence a fact which here does not, and cannot be made to, exist in actuality."
Amen to that. Trans* people have that problem all the time.

Well it's about damned time. It's asinine that it took this long to get overturned.

This is a great decision. Thanks for taking it apart for us, Nancy.

I especially like the analysis that every gay and lesbian floridian was put on trial in that legislation. It's true, and it's good to see judges starting to listen to the arguments we've been making for decades.

But I guess this goes all the way up, now. We'll see what happens then.