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

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.]