Last edited: March 28, 2004

ACLU Boosts Case Against Florida Adoption Ban / 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 heterosexuals have.”

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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