HRC Blog

Florida Court Rules Adoption Ban Unconstitutional

Update: Governor Crist has publically stated that he will honor the Third District Court’s ruling by immediately stopping enforcement of Florida’s ban on gays and lesbians adopting children. However, neither he nor Attorney General McCollum has decided whether to appeal the ruling to the Florida Supreme Court.

If appealed, the Florida Supreme Court must hear the case and may declare that the ban must be enforced pending the outcome of the appeal. In a major victory for lesbian and gay Floridians, the State’s intermediate Court of Appeals ruled in Florida Dept. of Children and Families v. In re: Matter of Adoption of X.X.G. and N.R.G. that Florida’s statute excluding homosexuals from adopting was unconstitutional under the Florida Constitution.  The unanimous three judge panel determined that the State of Florida, which defended the statute, failed to demonstrate that the statute had even the “rational basis” needed to uphold the law. The plaintiff in the case was a gay man who provided foster care for two neglected children and then sought to adopt them permanently.  The Florida Department of Children and Families denied his request because of Florida’s law banning homosexual adoption.  The Department of Children and Families conceded during the trial that it would have allowed for the adoption but for the existence of the statute.  On top of that, many other groups of people are allowed to adopt in Florida.  Lesbians and gay men were the only group categorically excluded from adopting, but were still allowed to serve as foster parents or guardians. The Court reviewed the evidence presented by the potential adoptive father and found it to be one sided in his favor. 

The Court of Appeals quoted the trial court in its opinion, noting that “[t]hese reports and studies find that there are no differences in the parenting of homosexuals or the adjustment of their children.”  The court also examined the evidence provided by the two experts for the Department of Children and Family Services and found them to be out of step with the scientific community and lacking in objectivity in their conclusions regarding lesbian and gay parents.  One of these experts was criticized previously for citing the work of a psychologist who was censured by the American Psychological Association for misreporting evidence regarding homosexual households. We would like to commend the ACLU for all of their hard work representing the plaintiffs in this case. This ruling is particularly significant for lesbian and gay Floridians because their state was the last in the nation with a law explicitly excluding adoption by gay men and lesbians. 

This victory, pending the possible appeal, leaves Mississippi and Utah as the only states with adoption bans for same-sex couples.  State courts in Michigan have ruled that unmarried individuals may not jointly petition to adopt.  And in 2008, Arkansas voters approved a statutory ban on adoption and foster parenting by unmarried individuals cohabiting with a sexual partner. The Arkansas ban was declared unconstitutional by a county circuit court in 2010, but has been appealed to the state Supreme Court.  In Florida, a previous challenge to the ban under the United States Constitution was rejected in Eleventh Circuit Court of Appeals in 1994.  Governor Charlie Crist of Florida is considering dropping the state’s lawsuit defending the law and personally opposes it.  However, the Department of Children and Families reportedly opposes his position, and it is unclear currently whether the state will appeal this decision to the Florida Supreme Court.

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