Last week, Florida's 3rd District Court of Appeal heard the state's appeal of the victory the American Civil Liberties Union achieved this past November when the Miami-Dade Circuit Court struck down Florida's ban on adoptions by gay men and lesbians.
With approximately 3,500 children languishing in the state's scandal-ridden foster care system, the issue before the court was whether the law can deny a child a safe, secure and permanent home because of the sexual orientation of the adoptive parent.
But there was another issue facing the court: How bad does a law have to be and still survive a court challenge? We all know that the Legislature sometimes passes bad laws, but should policies that are based on prejudice and stereotypes that masquerade as science survive as law?
Children trapped in Florida's foster care system have been held hostage to ugly antigay prejudice for far too long. The ACLU has been challenging this policy for years, and we have urged the Legislature to repeal the law so judges are allowed to make decisions based on the best interests of children.
We achieved a landmark victory in November 2008, when the circuit court granted an adoption to Martin Gill, a gay man who has been raising two foster children since 2004. Martin and his partner were planning to relocate out of state until they were asked by the Department of Children and Families to care for two terribly neglected young brothers. The state brought the children, malnourished and infested with lice, to the Gill home and asked that they provide foster care. Since 2004, Martin and his partner have provided the boys the only safe and stable home they have ever known.
When Martin later applied to adopt the boys, his application was denied by DCF officials who based their decision solely on the 1977 Anita Bryant-inspired ban. Florida continues to be the only state to ban adoption by qualified gays and lesbians. The ACLU sued on Martin's behalf, and in a reasoned decision the circuit court granted the adoption.
The court ruled that the ban violated the equal protection guarantees of the state Constitution because it treats differently, for no rational reason, gay people and the children they raise. The court also found that the ban denies children the right to permanency in violation of the due process clause of the Florida Constitution and the federal Adoption and Safe Families Act of 1997.
The court's decision came after a four-day trial, during which the court heard from the foremost experts on children's health and development and listened to the justifications offered by the state for the ban. The court rejected the false assumptions and stereotypes about gay people presented by the state, and instead credited the many reports and studies that find no differences in parenting by gays and nongays or the adjustment of their children.
The court held that "these conclusions have been accepted, adopted and ratified by the American Psychological Association, the American Psychiatry Association, the American Pediatric Association, the American Academy of Pediatrics, the Child Welfare League of America and the National Association of Social Workers. As a result, based on the robust nature of the evidence available in the field, this court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption."
The state immediately appealed and now the case is before an appellate court. This is likely not the end of this battle, and it will probably land in the lap of the Florida Supreme Court.
While it is important to win legal battles, it is equally important to change hearts and minds and debunk myths and prejudices so that our victories in court are sustainable and enduring. This saga shows how much easier it is in Florida to enact bad legislation than to repeal bad laws. Wiping this law off the books, whether by the courts or the Legislature, would help provide more children with permanent, loving and stable families.
For the past 30 years, state officials have tried to defend a law that did little more than give vent to prejudices and is now repudiated by every professional organization with expertise in the rearing of healthy children. For the last five years, Martin Gill has provided a nurturing home for two neglected brothers who are now thriving.
I know which side should prevail in this battle.
Howard Simon is executive director of the American Civil Liberties Union of Florida.
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