Joanna L. Grossman

Will Gays and Lesbians in Florida Finally Gain the Right to Adopt Children?

By JOANNA L. GROSSMAN
Tuesday, Octber 26, 2010

Florida's Attorney General just announced that the state will not appeal a recent ruling in which an appellate court struck down the state's longstanding ban on adoption by gays and lesbians. This ruling, In re Adoption of X.X.G. and N.R.G., puts an end to a forgettable era in which thousands of children were deprived of adoptive homes and thousands of adults were denied the opportunity to be parents -- for no reason other than animus against homosexuals and unfounded assumptions about their abilities to care for children.

The Florida Statute: An Outdated Relic

Under section 63.042(3) of the Florida code, "[n]o person eligible to adopt . . . may adopt if that person is a homosexual." This law is unique: No other state bars all gays and lesbians from adopting children.

A handful of other states do make it hard for gays and lesbians to adopt children, however. Arkansas, for example, enacted a referendum in 2008 that precludes adoption by any adult who is cohabiting with a partner outside of a lawful marriage. And since same-sex marriage can neither be celebrated nor recognized in that state, this prevents any non-single gay or lesbian adult from adopting or becoming a foster parent. Likewise, Mississippi explicitly bans adoptions by same-sex couples, and Utah bans adoption by all unmarried couples. Undoubtedly, too, gays and lesbians in many localities face difficulties in being approved as adoptive parents, even where the formal law does not stand in the way.

But the Florida law did not come as part of the anti-same-sex-marriage wave of laws passed in the 1990s and 2000s. Instead, it is a relic of an early period of controversy over gay rights, in the 1970s. Florida's gay-adoption ban was enacted in 1977, a result of former Miss America (and orange juice spokeswoman) Anita Bryant's nationwide campaign to roll back then-emerging civil rights for gays and lesbians. At the time, "gay rights" was just emerging as an idea and a movement.

Now, three decades later, the idea that an individual could be prevented from adopting an unwanted child -- even one whom he had lived with for years as a foster parent -- solely on the basis of sexual orientation seems shocking. Law and social values have moved well beyond that point. Among other relevant developments, the Supreme Court has struck down laws born solely of animosity towards homosexuals, as well as laws criminalizing private, consensual, same-sex sexual behavior.

On the specific subject of gay and lesbian parenting, the shift has been even more marked. Despite the laws mentioned above that curtail the rights of same-sex couples to adopt, most states have moved to explicitly embrace the rights of gay and lesbians to become parents. Either by court decision or statute, or in practice due to the case-by-case decisions of adoption agencies, gays and lesbians are able to adopt children in virtually every state. In addition, many states have allowed individuals to adopt the child of a same-sex partner, and have allowed same-sex couples to jointly adopt a child. In some states, gays and lesbians can become legal parents of children even without adoption -- by virtue of a same-sex marriage or civil union, or through recognition as an intended or de facto parent. Regardless of the specific context in which gay and lesbian parenting issues arise, the trend is in favor of recognizing parent-child relationships without regard to the sexual orientation of the adult or to the sex of the parent's intimate partner.

The Long Road to Invalidation: Previous, Unsuccessful, Efforts to Block Florida's Law

Despite the trend towards broader recognition of gay and lesbian parenting rights generally, and gay adoption in particular, the Florida law had been upheld against previous challenges.

Years ago, several gay men who served as foster parents in the Florida system challenged the law that precluded them from becoming adoptive parents. The named plaintiff in the case was Steven Lofton, a registered nurse who sought to adopt a boy, born HIV-positive, who had been in his care since infancy. His petition to adopt was denied under the statutory ban on adoption by homosexuals, and he challenged the denial in federal court. (Another plaintiff in the case, Doug Houghton, and the boy he lovingly foster parented but was denied the ability to adopt, is featured in a wonderful documentary on gay fatherhood by Johnny Symons entitled Daddy and Papa.)

The federal district court ruled against Lofton and the other plaintiffs, rejecting all their constitutional challenges. This was not entirely surprising, since classifications based on sexual orientation had not generally been held to warrant heightened judicial scrutiny -- and therefore had mostly been upheld. But while the case was pending before the U.S. Court of Appeals for the Eleventh Circuit, the U.S. Supreme Court decided Lawrence v. Texas , the landmark case that invalidated a criminal same-sex sodomy ban as a violation of the Due Process Clause's right to privacy.

While the full import of Lawrence is still not clear, even seven years later, the ruling robustly protected the right of individuals to engage in sexual intimate relationships without interference by or penalty from the state. It thus seemed to be a virtual no-brainer that a law precluding all practicing homosexuals from adopting -- regardless of their fitness to parent and regardless of any effect on the would-be adopted children -- could not survive a Lawrence challenge.

Lawrence was also preceded by a case that should have thrown this type of law into question. In Romer v. Evans , decided in 2003, the Supreme Court struck down an anti-gay statute in Colorado under the Equal Protection Clause, even without insisting on a heightened level of scrutiny. The Court ruled that laws that are clearly "born of animosity" to a particular class could be struck down under even the most permissive form of judicial review.

Despite these powerful precedents, however, the U.S. Court of Appeals for the Eleventh Circuit upheld Florida's gay-adoption ban in a 2004 ruling, Lofton v. Secretary of Department of Children & Family Services. The ruling took a stingy, acontextual approach to understanding and applying Lawrence, failing to see the substantial and unjustifiable harm that was imposed by categorically denying gays and lesbians the right to adopt children. The U.S. Supreme Court declined to review the case, leaving the ban intact.

In re K.K.G. and N.R.G. : The End of the Florida Statute

But then, a few years later, a new case was brought challenging the gay-adoption ban in Florida. This time, the case was litigated in state court, under state constitutional principles -- and with greater success.

In 2008, in this case (then styled In re Adoption of Doe), a Florida trial court held that the law could not survive even the lowest level of constitutional scrutiny because it lacked a rational basis.  The plaintiff was a man, known in court as F.G., who was denied the opportunity to adopt two brothers whom he had been raising for several years as a licensed foster-care provider.  The child-protection investigator had pleaded with F.G. to take the boys in so they could have "a good Christmas." F.G. was a licensed foster-care provider and agreed to take the boys in while the state sought a permanent placement for them. But after their natural parents had their parental rights terminated, and the children became adoptable, F.G. sought to become their permanent legal father—and thus, he challenged in court the Florida statute that prevented him from doing so. 

The judge held a four-day trial, which focused on the scientific evidence about how children fare when raised by gays and lesbians, versus by straight parents.  It ruled that the "best interests of the children are not preserved by prohibiting homosexual adoption."

A three-judge appellate court unanimously upheld this ruling.  In the appellate ruling, now styled as In re Matter of Adoption of X.X.G. and N.R.G., the court agreed that Florida's gay-adoption ban is unconstitutional. And it is this ruling that Florida officials -- first, the Department of Children and Families, and then the state's attorney general -- have declared they will not appeal, as I mentioned at the beginning of this column.

A possible key to the appellate ruling in favor of gay adoptive parents was a set of stipulated facts:  All the parties formally agreed that F.G. was a fit father and that his adoption of the boys was in their best interests.  It was thus very clear that, but for the statutory ban on adoption by homosexuals, the adoption would have gone forward without a hitch.  But even more importantly, the Department of Children and Families stipulated "that gay people and heterosexuals make equally good parents."

The court analyzed whether the gay-adoption ban could survive rational-basis review (the least demanding standard of judicial review) since the challenge did not involve a fundamental right or suspect class (which would have triggered a higher standard of review).  But even applying this deferential standard of review, the court concluded that the ban violated the equal- protection guarantee of the Florida constitution.  

The state argued that its ban on gay adoption is justified by the desire to provide better role models for children and to minimize the discrimination they might face in their adoptive homes.   But several features of the statute struck the court as irrational, given the state's purported interest in serving child welfare.  No other group — including even the group of parents with previous verified findings of child abuse or neglect, and the group of felons — is categorically excluded from the pool of adoptive parents.   And adoption in Florida is not reserved for those living in traditional family structures: Unmarried couples and single adults can adopt and, in fact, they account for a significant percentage of the adoptions in any given year.  And gays and lesbians, while categorically excluded from adoption, are permitted to serve as foster parents and legal guardians to children in Florida. Indeed, the plaintiff in this case has been foster parenting the two children he seeks to adopt for six years.

Very important to both the trial and appellate rulings is the emerging social-scientific consensus that children raised by gay and lesbian parents fare as well as children raised by straight parents.  Even the experts who testified to the contrary in this case did not, in the appellate court's view, provide sufficient support for a categorical exclusion.  All available evidence, the court noted, suggests that adoption placements should be made based on individualized findings about the adoptive parent(s) and the home and care they will provide for a child.  Sexual orientation is no better predictor of the ability to parent than is any other single characteristic -- such as race, gender, age, health, experience, etc. Proposed adoptions by gay and lesbian parents should thus, the court concluded, be conducted in the same manner as all other adoptions — based on a careful set of procedures designed to evaluate the best interests of the child. 

This ruling -- which effectively means the end of the gay-adoption ban -- will help Florida satisfy its obligations to dependent children. By law, the state of Florida is required to provide dependent children with a stable and permanent home, and has an obligation to seek adoptive placements -- considered the "highest and preferred form of permanency" -- as rapidly as possible. The children at issue also have a liberty interest in avoiding unnecessary confinement in foster care. As the trial court in this case observed, the adoption ban burdened those interests of children by "unduly restraining them in State custody on one hand and simultaneously operating to deny them a permanent adoptive placement that is in their best interests on the other."

Children will be well-served by this ruling, as will be the gay and lesbian Floridians who are willing to provide them a home. There are no losers here.


Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), and the coauthor of a forthcoming book entitled Inside the Castle: Law and the Family in Twentieth Century America (Princeton University Press, forthcoming 2011). Her columns on family law, trusts and estates, and discrimination may be found in the archive of her columns on this site.

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