ACLU Boosts Case Against Florida Adoption Ban
PlanetOut.com Network, July 22, 2003
By Ann Rostow
On Monday, the American Civil Liberties Union filed a
20-page supplemental legal brief with the federal appellate court that is now
considering the fate of Florida’s ban on gay adoptions.
The challenge to the Florida adoption statute began in
1998, when the ACLU filed suit on behalf of several gay foster fathers. After
losing in lower court, the plaintiffs appealed to the U.S. Court of Appeals
for the 11th Circuit, where oral arguments were heard last March. The
arguments against the law were powerful to begin with, but last month’s
ruling by the U.S. Supreme Court in Lawrence v. Texas made them even stronger.
“After Lawrence,” wrote the ACLU, “courts cannot
look the other way when government treats lesbians and gay men as second class
citizens. The time when the state could just make up an explanation for a law
and have it accepted at face value without careful examination has passed.”
In the post-Lawrence world, they concluded, Florida’s morality-based
prohibition on gay and lesbian adoptive parents “can not stand.”
According to the ACLU, Lawrence undercuts the position of
the state of Florida in two ways. First, the state can no longer use the high
court’s 1986 anti-gay opinion in Bowers v. Hardwick, to support the right to
pass discriminatory legislation based on the moral sentiments of the majority.
That reasoning, used so effortlessly for so many years in so many contexts,
“is completely foreclosed” by the Lawrence decision, which rejected Bowers
as “not correct when it was decided, and ... not correct today.”
More interestingly, the ACLU argued that Lawrence
established a profound respect for the dignity of homosexual relationships
that obliges future courts to give heightened scrutiny to laws that undermine
gay families and partnerships. By linking the right to private same-sex
intimacy with previous privacy rulings, said the ACLU, the court has
“recognized for the first time that lesbian and gay men have the same
liberty interest in forming intimate, personal relationships that
Once this interest is established, they continued, “the
state cannot penalize people for exercising it ... absent an important and
narrowly tailored justification for doing so.”
Florida’s second major claim, that children are better
off in two-parent heterosexual families, fails on all counts: It is not true.
It is belied by the state’s placement of foster children in gay households.
And, given the backlog of children waiting to be adopted, there is no
connection between a law excluding gay adoptive parents and Florida’s stated
goal of increasing the number of heterosexual parents wishing to adopt.
Yet prior to Lawrence, courts have deferred as a matter
of law to even the most far-fetched explanations offered up in defense of
anti-gay statutes. Under the ACLU’s interpretation of Lawrence, however,
those days are over.
“After Lawrence,” wrote the ACLU in a footnote,
“sexual orientation classifications should generally get intermediate
scrutiny as quasi-suspect classifications.” If judges were to agree with
this analysis, America’s remaining anti-gay laws would fall like rotten
fruit from the trees in the next decade.
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