Definition of Family: Constitutionality of FL Adoption Law Banning Gays

In-laws

I write this having just come from a 6 day visit with my in-laws. I know for many the word "in-laws" is a dreaded one, but these people are not just my DH's family, but my family too. These are people I love. They have been a part of my life for 14 years. We have laughed, cried, argued, worked and played together. There are times we don't agree with each other and times we don't even like each other, but that's alright because we each know we are loved, supported and prayed for no matter what. In the end, we are family, and that's what it's all about to me.

Portrait of a Family

Families come in different colors and shapes. No two families look alike. Some are created by marriage; others by circumstance; and still others by adoption. Some families have two mommies; some have a mommy and a daddy; others have a mommy and step-dad and daddy and step-mom; and still others have two daddies; or just one mom; or just one dad. Some families have no children; others have lots of children; while many families have one, two or three children. Families can be blood-related or not. You get the picture. Each is free to define what his or her family portrait looks like.

Adoption

There was a time that DH and I talked about adoption. We envisioned our "little girl" from a faraway land. But plans change, and ours did. Instead, we were blessed with two amazing, healthy, biological boys.

People turn to adoption for various reasons. There are many laws about who can adopt and lots of hoops to jump through to get to that process, and there should be. Allowing someone to adopt a child is a crucial decision. The health and happiness of a child's life is on the line. While there are many factors to consider when going through the adoption checklist, whether the parent is gay should not be the only factor.

The Law & the Case

On September 22, 2010, the Third District Court of Appeal of the State of Florida unanimously struck down a 1977 law banning adoption by gays, individuals and couples. This particular case involves Martin Gill, an openly gay man, who petitioned the court to adopt two boys that he and his partner have been raising as foster children since 2004.

According to court records, the Florida law banning gays from adopting is the only one of the its kind in the country. MSNBC reports that Arkansas and Utah ban any unmarried straight or gay couples from adopting or fostering children, and Mississippi bans gay couples, but not single gays, from adopting, but no state bans all gay people, without any other consideration.

The Court's Decision

Judge Gerald B. Cope, Jr., stated, "It is difficult to see any rational basis in utilizing homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on those same persons." There are no other groups of people absolutely banned from adoption in this statute. Judge Cope continued, "All other persons are eligible to be considered case-by-case to be adoptive parents."

The court of appeals found the law unconstitutional because gay parents were the only type of adoption applicant not allowed to have his or her petition reviewed on a case-by-case basis. This law doesn't even mention applicants with criminal backgrounds, for example.

Rational Basis Test

A rational basis test is employed to determine the constitutionality of laws where there is no fundamental right, such as speech, assembly or right to bear arms, or a protected class, such as gender, national origin or religion. It's the state's job to show that it has a rational basis for enacting the law in question and limiting a person's rights.

In this case, the state could not prove that it had a rational basis for precluding gay persons from petitioning to adopt. In this case, it was shown that the children have been thriving in the six years they have lived with Gill, and to remove the children from his care would be devastating to these boys. The fact that Gill is gay neither determines neither what kind of parent he is nor what kind of home environment he can provide. The evidence clearly shows Gill to be a loving, nurturing parent with a deep parental bond with these boys.

The Next Step

Florida's Governor Charlie Crist immediately announced that the State would stop enforcing the ban on gays adopting children. Crist further stated that he was pleased with the ruling on behalf of the Gills, calling it "a great day for children."

Of course, the court of appeals does not have the last word regarding the unconstitutionality of this law; the Florida Supreme Court does. Gill and the American Civil Liberties Union, which represented him and his partner, want the state to take the case to the state Supreme Court to obtain a final statewide determination on the law. The state of Florida has until October 22, 2010 to appeal the ruling.

The Scoop

As a parent who is by no means perfect; who in retrospect realize my mistakes and hope and pray that I have not permanently damaged my children, I recognize the importance of finding a patient, loving, caring, supportive parent. Whether such a parent is gay should have no bearing on whether he can adopt a child in need of a good parent.

How do you define family? Do you think gay individuals and/or couples should be barred from adopting children into a loving, caring home? Talk to me, friends. I will post tips for talking about adoption whether foreign or domestic; whether the parents are single, straight or gay; and whether your child is adopted or a family member or friend. Over and out…

Anna

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Comments

[Jen Freeman]

Family: Two or more people who care for each other, sometimes live together, love each other and contribute to the overall success of the group. The law is unconstitutional. It's heartbreaking and terrifying to me that people have an issue with gay adoption. The fact that a court is still on board with a ban brings me to a whole new level of disappointment.

[Heidi]

Great post. You hit the nail on the head when you say homosexuality should have no bearing on whether he or she can adopt a child. Too many kids needs good homes, role models, safe, loving homes for us to be wasting time on whether the parent is gay or straight.