Last edited: February 01, 2004

Court Upholds Florida Gay Adoption Ban, January 29, 2004

By Ann Rostow, / Network

SUMMARY: The U.S. Court of Appeals for the 11th Circuit ruled that Florida has the right to exclude both single and partnered gay men and women from its pool of potential adoptive parents.

The U.S. Court of Appeals for the 11th Circuit ruled late Wednesday that Florida has the constitutional right to exclude both single and partnered gay men and women from its pool of potential adoptive parents.

The high-profile challenge to Florida’s unique adoption ban was argued before the Atlanta-based court last March. The American Civil Liberties Union (ACLU), representing three gay fathers, has not yet decided whether to appeal either to the full bench of the 11th Circuit, or possibly to the U.S. Supreme Court.

Writing for the unanimous three-judge panel, Judge Stanley Birch noted that adoption is an institution under strict state control, where the best interests of the child is paramount, and where no one has an inherent “right” to become an adoptive parent. Foster families, like those of most of the appellants, have no expectation of permanence, he continued, and cannot expect the kind of constitutional protections that shield adoptive or biological parents.

As for the Supreme Court’s historic ruling in Lawrence v. Texas, which generated an extra round of legal briefing in this case last summer, Judge Birch wrote that Lawrence did not articulate a “fundamental” right to personal and sexual autonomy for same-sex couples, and that nothing in the landmark opinion required his court to subject appellants’ claims to heightened judicial scrutiny.

(Laws that threaten so-called “fundamental” rights must survive the toughest judicial tests in order to remain on the books.)

Finally, in addressing the question of whether the men’s right to Equal Protection was breached, Judge Birch took the easiest standard of judicial review, and made it even easier. Quoting a controversial military case, Birch said a state law must be given the benefit of the doubt “if there is any reasonably conceivable state of facts that could provide a rational basis” for discriminating between classes of people. Further, he went on, a state “has no obligation to produce evidence to sustain the rationality of a statutory classification.”

Florida had no trouble jumping this low bar, mainly by explaining that a mother and father provide the most stable home for child rearing. Florida allows single heterosexuals to adopt children and permits gay men and lesbians to act as foster parents—policy conflicts that the court swept aside.

The defeat cheered conservatives. “In this age of judicial activism,” said Matthew Staver of the right-wing Liberty Counsel in an Associated Press report, “it is refreshing to see a court assume its proper role and allow the people to set family policy.”

Matt Coles, head of the ACLU’s Lesbian and Gay Rights Project, called the decision “deeply disappointing,” and pledged to do “everything we can” to make sure the children in the case are not removed from their families.

“If gay people can be foster parents and legal guardians,” said Howard Simon of the ACLU’s Florida chapter, “and if there are thousands of children languishing in foster care, there can be no justification for Florida’s ban on gay adoptions, other than impermissible prejudice and hostility towards gay people.”

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