Academic

Trial Judge Strikes Down Florida Ban on Gay Adoption

By Tony Infanti

In granting an adoption by a gay man of a foster child that he and his partner had been caring for for years, a trial judge in Key West recently struck down Florida’s ban on adoption by lesbians and gay men.

The ban had previously been upheld against challenge in Lofton v. Secretary, Florida Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004), and Cox v. Florida Department of Health and Rehabilitative Services, 656 So. 2d 902 (Fla. 1995). (The Lofton decision, coming after the Supreme Court’s decision in Lawrence v. Texas, was particularly criticized by commentators.)

In the Key West case, the lawyers and the court focused on three grounds that they indicate had not been raised in earlier cases: (1) the Florida constitution’s prohibition against “special” (as opposed to “general”) laws in the area of adoption, (2) the Florida constitution’s prohibition against the enactment of “bills of attainder,” and (3) separation of powers. The court struck down the ban on all three of these grounds. In finding against the ban on the first two grounds, the court focused on the punitive nature of the ban. On the separation of powers ground, the court found that the ban usurps the court’s traditional role of determining what is in the best interests of children by creating an irrebuttable presumption that adoption by a lesbian or gay man is never in the best interests of a child—and does so without any basis in fact.

The Florida Attorney General was invited to intervene in the case, yet made no request to do so. According to a story in the Miami Herald, the Attorney General’s office said that it did not get involved because the child was no longer in the care of the Department of Children and Families because the man who petitioned to adopt the child and his partner had earlier been named permanent guardians of the child by the court. The Attorney General’s office has since indicated that it will not appeal the decision, which in effect makes it binding only in the Key West court. Nevertheless, as the editorial board of the Miami Herald points out: “Still, it is a victory for one family and, possibly, a chink in the state’s specious legal position that bias is OK.”

-Tony Infanti

Full post as published by Feminist Law Professors on September 13, 2008 (boomark / email).