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Perry on the Florida Gay Adoption Case

By Lawrence Solum

Michael J. Perry (Emory University School of Law) has posted The Florida ?Gay Adoption? Case and the Political Morality of Liberal Democracy on SSRN. Here is the abstract:

On September 22, 2010, Florida?s Third District Court of Appeal ? an intermediate appellate court ? affirmed a ruling by a Florida trial court that a Florida statute banning adoption by homosexuals violates the Florida constitution. As it happens, the ruling by the Florida trial court was the principal subject of the Conclusion to my recent book, The Political Morality of Liberal Democracy (Cambridge Univ. Press, 2010). In the Conclusion, I wrote:

The Florida law not only violates the political morality of liberal democracy. The law ? according to which, again, no one otherwise eligible to adopt under Florida law ?may adopt if that person is a homosexual? ? is unconstitutional. The law is unconstitutional even from the perspective of Thayerian deference: Given the robust social-scientific consensus that has emerged to the effect that parenting by homosexuals is no less healthy for children ? no less in the ?best interests? of children ? than parenting by heterosexuals, Judge Lederman was right to conclude that no lawmaker could any longer plausibly think that the Florida law serves a legitimate governmental interest.

Sometimes a court?s rejection of a constitutional challenge to a law is not merely incorrect; sometimes it is shameful. So shameful as to later warrant both embarrassment and apology. Two infamous examples:

1. In Plessy v. Ferguson, the U.S. Supreme Court?s rejection of a constitutional challenge to a law requiring racially segregated ('separate but equal') railroad accommodations.

2. In Korematsu v. United States, the U.S. Supreme Court?s rejection of a constitutional challenge to the forced relocation of persons of Japanese ancestry, many of whom were American citizens, from their homes on the west coast of the United States to internment camps, during World War II.

By the time this book has been published, Judge Lederman?s constitutional ruling may have been reversed by the Florida Supreme Court. If so, that reversal ? that rejection of the constitutional challenge to the Florida adoption law ? will be not merely incorrect; it will be shameful. So shameful as to later warrant both embarrassment and apology.

For those who may be interested, this posting to SSRN includes the entire Conclusion to my book and also the recent decision of Florida?s Third District Court of Appeal.

Full post as published by Legal Theory Blog on September 28, 2010 (boomark / email).