Florida is the last state in the U.S. which specifically bans gays and lesbians from adopting children. Some states don’t allow same-sex couples to adopt children as joint parents, but no states, besides Florida, have a statutory ban on homosexual individuals adopting children individually.
Florida law does not ban gays and lesbians from serving as foster parents. A man who served as a foster parent to two children who came to him in horrible condition (they were dirty, sick, and malnourished – they had been utterly neglected by their biological parents). The man involved in this case took them in, and the condition of the children rapidly improved, and they are now thriving. He sought to adopt them, and become their legal parent.
His adoption petition was denied, however, because he is gay, so he sued to have the statute overturned. He has just prevailed (also reported here) in a Florida appellate court. The court’s opinion can be read here. In short, the court found that, because gay men and women are allowed to serve as foster parents, and there’s no bar to single parents adopting under Florida law, the ban on gay people adopting children as single parents served absolutely no purpose, and could not withstand a constitutional challenge, even under relaxed “rational basis” scrutiny.
This is a perfectly correct decision in my opinion. Study after study reveals that sexual orientation plays no role in a person’s abilities as a parent, or a child’s well-being. According to the opinion of the court, some of these studies have tracked the development of the subject children for up to 14 years, showing absolutely no difference in their psychological well-being, or their social adjustment.
And the government of Florida (or at least the executive department charged with defending this law) conceded all of these facts. This might have been caused by a lack of motivation on the part of the relevant state agency to defend the law in court. This is certainly not without precedent, even if you narrow it down to cases addressing gay rights: in the recent federal case challenging California’s ban on same-sex marriage as unconstitutional, the Governor and Attorney General of California declined to defend that law.
Personally, I think it’s wonderful that this law seems to be on its way out. And if it’s done away with in Florida, no state in the U.S. will have such a blatantly discriminatory law. Given all the evidence supporting the conclusion that gay people are just as competent parents as straight people, one really has to wonder what would motivate lawmakers when passing a law like this. While I strongly disagree with them, I can understand why some people might argue against same-sex marriage, and it might follow from that position that you don’t think states should allow a same-sex couple to both serve as the legal parents of an adopted child.
However, when a law would prevent perfectly-qualified parents from adopting children in desperate need of a stable home, purely because the sexual orientation of the prospective parent, it’s hard to imagine what might motivate such a law, other than simple disdain, distrust, or other negative bias towards gay people. I realize that a (hopefully) small but vocal minority in this country openly flaunts those views, and they’re certainly entitled to have whatever opinions they like, but that is not a valid basis for making law.
There has been a great deal of hubbub about how elected officials are skirting their constitutional duties by declining to defend laws they don’t agree with. A while back, the Obama administration took some heat when its defense of the federal Defense of Marriage Act was perceived as lukewarm and unmotivated, and (predictably) there were shrill calls for his impeachment, because he didn’t undertake his duty to “defend the law.”
But let’s examine that claim. The U.S. Constitution says that the President’s main responsibility is to ensure that the laws of the United States are “faithfully executed.” It also says that the Constitution is the “supreme law of the land.” Most state constitutions have similar provisions which apply to their respective governors.
What if the president or governor honestly believes a law which they’re charged with defending is unconstitutional? If the constitution is the “supreme law of the land [or state],” don’t they have a duty to see that it’s faithfully executed, above all else? This raises some very interesting questions, which might never be answered, since it’s nearly impossible to imagine a scenario in which a person would have standing to sue the U.S. President/state governor, to force them to defend a statute in court.
While this debate will likely continue for quite some time, it’s good to know that at least one aspect of family law now appears to be consistent across the country.
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