He's a Fine Parent, but Other Gay People Aren't, So He Can't Adopt

Jacob Sullum | August 27, 2009

In a column last December, I noted a case in which Miami-Dade Circuit Judge Cindy Lederman concluded that there was no rational basis for Florida's ban on adoption by homosexuals. Yesterday the state tried to convince an appeals court that Lederman erred, arguing that the ban is justified by higher rates of breakups, psychiatric problems, and domestic violence among gay couples. Lawyers for Martin Gill, a gay man who is seeking to adopt two foster children he has been raising for five years, disputed the statistics and argued that, in any event, "group generalization makes no sense," since the government can, should, and does evaluate would-be adoptive parents as individuals. At least two of the appeals court judges seemed sympathetic to Gill:

The state defended the gay adoption ban in general terms without attacking the suitability of Gill's parenting...

Citing the five-year foster relationship, Judge Vance Salter noted the state is espousing contradictory messages. The Department of Children and Families maintains having the half brothers, now 9 and 5, stay with Gill and his longtime partner would be best for the boys.

"The state doesn't contest that this is in the best interest of the children," Salter observed.

Deputy Solicitor General Timothy Osterhaus, who argued for DCF, said, "We do not."...

Judge Gerald Cope Jr. said: "This is as far as I can tell the only absolute disqualification under the statute. How is that fair?"

He noted state law doesn't disqualify adoptive parents on the basis of criminal history, drug use or disabilities.

The "rational basis" test (applied in this case because Lederman's equal protection analysis did not treat sexual orientation as a "suspect class") is generally viewed as so easy to satisfy that it's hardly a test at all. But Florida's blanket ban on adoption by anyone who happens to be gay, which is unique in the nation, may just be stupid enough to fail.

Julian Sanchez made "The Case for Gay Adoption" in the December 2008 issue of Reason.

[Thanks to Mark Bonacquisti for the tip.]

Comments

Gunboat Diplomacy|8.27.09 @ 12:44PM|#

Of course the fact that a guy was recently convicted of fathering two children with his adopted daughter doesn't push people to opose heteros from adapting. Of course he did say he was sorry.

I'd look for the link, but I'm off to the veteranarian.

|8.27.09 @ 12:50PM|#

Threadjack...

Speaking of equal protection, a NH court recently threw out a sex offender residence ban based on equal protection (the law passed the rational basis test but failed the intermediate scrutiny test):

"Weaver's decision states that the ordinance violates Jennings' equal protection rights and that the state failed to meet is burden of proof establishing that the ordinance bears a "substantial relation to important government interest." He added that the state failed to produce any evidence showing a causal connection between the residency restriction and the protection of minors."

Full story here.

Full court decision here (pdf).

Note that the city involved elected not to appeal for fear of this precedent being set at the state Supreme Court level and thus applying statewide.

End threadjack.

Stretchy|8.27.09 @ 12:53PM|#

I wonder if there are any other groups in Florida that have "higher rates of breakups, psychiatric problems, and domestic violence". And what would the reaction be in those communities if the government discriminated against individuals in those groups because of an arbitrary association.

If, for instance, people living in the panhandle counties had, "higher rates of breakups, psychiatric problems, and domestic violence" would it be just to deny adoption to anyone living in a panhandle county?

|8.27.09 @ 1:08PM|#

Yesterday the state tried to convince an appeals court that Lederman erred, arguing that the ban is justified by higher rates of breakups, psychiatric problems, and domestic violence among gay LEO couples.

How's that sound Florida?

Steve Tauber|8.27.09 @ 1:29PM|#

I attended a talk given by Dan Savage of "Savage Love", an article in the Stranger. He was discussing adoption with his long time partner and mentioned one thing that stood out in my mind. On the ability of homosexuals to be fit parents, he said:

"It's not like you can get drunk and adopt."

|8.27.09 @ 1:29PM|#

Why do you have a problem with the state enforcing biblical dictates? We don't want Florida to turn to salt. We're smarter than that.

ed|8.27.09 @ 1:31PM|#

Jeethus Chrith!

|8.27.09 @ 1:37PM|#

But...but...he's gay...

|8.27.09 @ 1:37PM|#

Lawyers for Martin Gill, a gay man who is seeking to adopt two foster children he has been raising for five years,

So, the state is saying here that belonging to a class that has "higher rates of breakups, psychiatric problems, and domestic violence" isn't a bar to being a foster parent? Interesting.

I'm generally not a fan of gay = black arguments, but isn't it the case that blacks also have "higher rates of breakups, psychiatric problems, and domestic violence"? Although I like the LEO example better.

|8.27.09 @ 1:54PM|#

Gunboat Diplomacy | August 27, 2009, 12:44pm | #


I'd look for the link, but I'm off to the veteranarian.



more compelling evidence for the need to reform health care...

<a/|8.27.09 @ 2:08PM|#

WAAAAAAAAAAAAAAAAAAAHHHHHHHHHHHHH!!!!!

|8.27.09 @ 2:23PM|#

I wonder if there are any other groups in Florida that have "higher rates of breakups, psychiatric problems, and domestic violence".

Yes. Law enforcement. And the military, at least at the enlisted level.

But y'all know we don't want none o' them hommasexshuls marryin' or bein' responsible for yo' chilluns. They's jus' unnatrul lahk.

Art-P.O.G.|8.27.09 @ 3:08PM|#

"#" with another sterling and profound contribution.

|8.27.09 @ 3:15PM|#

Lamar-

"biblical dictates?" None to be found in Matthew, Mark, Luke or John regarding homosexual marriage.

That Jesus himself did not have a word to say about homosexual marriage is a pretty good indicator that those who claim to be christian will never spend a day in heaven if they premise their anti-homosexual marriage position upon Christ.

|8.27.09 @ 3:36PM|#

Christianity as it is today, LM, is the victory of Paul over Jesus.

|8.27.09 @ 4:01PM|#

"biblical dictates?" None to be found in Matthew, Mark, Luke or John regarding homosexual marriage.

I think you'll find in Genesis that God destroyed two whole cities. And even though there's no real suggestion that homosexuality was the cause, this is Christianity we're talking about. It doesn't need to stinking cause. Sodom and Gomorrah means God hates homos and will destroy everything, including the children of gays. And, yes, I'm mocking that position.