The Irrationality of Florida's Gay Adoption Ban


As Jesse Walker noted this morning, Florida Attorney General Bill McCollum said on Friday he will not challenge a state appeals court ruling that overturned a law banning adoption by gay people. Since the Florida Department of Children and Families already had said it would not ask the state Supreme Court to hear the case (a decision that Gov. Charlie Crist supported), that means the law, the country's only explicit ban on all gay adoptions, has been lifted permanently. Last month Florida's Third District Court of Appeal found (PDF) there was no rational basis for discriminating against adoptive parents based on their sexual orientation:

Under Florida law, homosexual persons are allowed to serve as foster parents or guardians but are barred from being considered for adoptive parents. All other persons are eligible to be considered case-by-case to be adoptive parents, but not homosexual persons—even where, as here, the adoptive parent is a fit parent and the adoption is in the best interest of the children.

The Department has argued that evidence produced by its experts and [adoptive father Martin Gill's] experts supports a distinction wherein homosexual persons may serve as foster parents or guardians, but not adoptive parents. Respectfully, the portions of the record cited by the Department do not support the Department's position. We conclude that there is no rational basis for the statute.

Agreeing with Miami-Dade Circuit Judge Cindy Lederman, the appeals court said the adoption ban therefore violated the Florida Constitution's equal protection provision:

All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property.

The court applied a "rational basis" test because "the parties and trial court agreed that this case does not involve a fundamental right or suspect class." Although rational basis review is quite deferential, it is not hard to see why the court concluded that Florida's ban was not "based on a real difference which is reasonably related to the subject and purpose of the regulation." For one thing, "the trial court found, and all parties agree, that [Gill] is a fit parent and that the adoption is in the best interest of the children." Furthermore, "the parties agree 'that gay people and heterosexuals make equally good parents.'" The gay adoption ban not only failed to serve children's best interests, which is supposed to be the overriding aim of  adoption law; it undermined this goal by arbitrarily excluding candidates who could have given homes to children who would otherwise go unadopted.

The only expert witness who actually testified in support of the ban was this guy. I discussed Lederman's ruling in a column last year. Steve Chapman made the case for gay adoption in a 2008 column. Julian Sanchez methodically disassembled the arguments for banning gay adoption in a 2005 Reason article.