Fla. Gay Adoption Decision Sparks More Debate

On Behalf of | Sep 27, 2010 | Uncategorized

In our last post, we wrote about this week’s Florida Court of Appeal decision that affirmed the unconstitutionality of the state’s ban on adoption by homosexuals. Even as far away as Illinois, communities are feeling the repercussions of the case, because, at the heart of it, the decision is about parenting.

The case sprang from the Florida Department of Children and Families’ rejection of F.G.’s petition to adopt the two boys he had been caring for as a foster parent. F.G. and the boys filed suit claiming that the Department had violated their constitutional rights to due process and equal protection (and, for F.G., the right to privacy). The trial court found for F.G. in 2008.

The trial court said that the statute did, indeed, violate F.G.’s and the children’s equal protection rights under the Florida Constitution. The statute treated F.G. and homosexuals differently from other individuals seeking to adopt. Even people with criminal histories were evaluated on a case-by-case basis. Homosexuals were simply banned outright.

The Department appealed, arguing that there is a “rational basis” for the statute. In an equal protection constitutional challenge, a court must uphold the statute if the classification — that is, the singling out of one group to be treated differently — is rationally related to a legitimate governmental interest. In an adoption case, the governmental interest is the best interests of the child or children.

The Court of Appeal looked at the statute and compared it to other state laws. The law, they said, did not categorically, automatically exclude anyone from consideration for adoption except homosexuals. If the law were drafted to protect the best interests of the child, though, why would other laws and regulations allow homosexuals to be, for example, legal guardians and foster parents?

Then, the court tried to find proof of a legislative determination that gays, as a group, are unfit parents. They found none — nor did anyone associated with the case make this argument. Experts for both sides affirmed that research has not proven any difference in suitability related solely to sexual preference.

The Department took the position that children with heterosexual parents, preferably husband and wife, will have better role models and face less discrimination. The court disagreed. Citing the foster parent and guardianship guidelines and the adoption law itself (unmarried heterosexuals may adopt), the court found no rational basis for the blanket prohibition supported by the Department.

While F.G. and his boys are celebrating with advocacy groups nationwide, the decision has already drawn criticism from Christian groups.

One argument harks back to the Department’s: The best interests of the child are provided for in a heterosexual, married family environment. A Virginia attorney who supports the ban said that “common sense and human history” have taught us that children need a mother and a father, that neither is optional.

Other groups supporting the ban argue their case on constitutional grounds. Christian adoption agencies that oppose gay adoption will be forced to go against their religious principles if the ban is lifted. These organizations will have to make decisions that violate their consciences.

The story for F.G. may have a happy ending. Family law attorneys will watch intently as the hurricane of controversy starts to swirl around the statute, the court’s decision, and F.G. and the boys.


Florida Third District Court of Appeals Florida Department of Children and Families v. In re: Matter of Adoption of X.X.G. and N.R.G. 9/22/10

CBN News “Fla. Court Rules Gay Adoption Ban Unconstitutional” 9/23/10


FindLaw Network

Get Help Today


My Law Firm Offers The Following Family Law Services:

divorce & family law