When Julian Sanchez outlined "the looming battle over gay parenting" ("All Happy Families," August/September 2005), his prime example was Florida, the only state with an explicit, uniform rule against adoptions by homosexuals. As of October, when Florida Attorney General Bill McCollum said he would not challenge a state appeals court decision overturning the ban, the law was officially a thing of the past.
The month before, Florida's 3rd District Court of Appeal had agreed with Miami-Dade Circuit Judge Cindy Lederman that discriminating against adoptive parents based on their sexual orientation violates the state constitution's guarantee of equality before the law. The court found that the gay adoption ban could not satisfy even the highly deferential "rational basis" test because it was not "based on a real difference which is reasonably related to the subject and purpose of the regulation."
Under Florida law, the court noted, "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 case, filed by the American Civil Liberties Union, involved two brothers, currently 6 and 10, who have been raised by Martin Gill and his partner in North Miami since 2004, when the boys were removed from their home because of neglect and placed in foster care. As the appeals court noted, "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.'" In light of these concessions, the court found the testimony of the state's expert witnesses, only one of whom actually supported barring gay people from adopting, inadequate to establish a rational basis for the law.
Since Sanchez's article appeared, the fight against unequal adoption laws also has made progress in Colorado, Delaware, and the District of Columbia, which have enacted legislation making adoption easier for gay applicants. By contrast, a 2007 Utah law gives preference to married heterosexual couples as foster parents, and a 2008 Arkansas ballot initiative, deemed unconstitutional by a state judge last April, bars "unmarried individuals in cohabiting relationships" from becoming foster or adoptive parents.