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Florida Court of Appeals Rules Gay Adoption Ban Unconstitutional

By Tanya Roth, Esq. on September 22, 2010 | Last updated on March 21, 2019

This week, the last state statue expressly banning all homosexual parents from adopting children was struck down by the Florida Court of Appeals. The gay adoption ban was found by the court to unconstitutionally limit same-sex families from adopting, even though they had been permitted to become parents in other ways. The Florida Department of Children and Families, who defended the law, will almost certainly appeal the decision to the state's highest court.

The Miami Herald writes that attorneys for Frank Martin Gill who, along with his partner, had been fostering their children but were not permitted to adopt them, were elated by the decision. "This is good news for the advancement of human rights and the children in Florida's troubled foster-care system," ACLU attorney Howard Simon said.

The Florida law constituted a blanket ban on adoption of children by homosexual couples. The court, finding that there was no protected class or fundamental right at stake, applied the rational basis test to the law. This is the lowest of the constitutionality tests that can be applied and asks, does the state have a "rational basis" for enacting the law?

The opinion written by Judge Gerald B. Cope, Jr. considered that for example, under Florida law, homosexuals may have custody of biological children after the dissolution of a marriage, may be foster parents and may become guardians of minors. They were only prohibited from adopting. This type of dividing line made it hard for the court to see a rational basis in the prohibition on adoption.

In addition, no arguments were even made that homosexuals, as a group, were poorer parents than homosexuals. "To the contrary, the parties agree 'that gay people and heterosexuals make equally good parents,' " wrote Judge Cope. Therefore, the court found there was no rational basis for the Florida law.

As noted, the case over the gay adoption ban is likely to head next to the Florida Supreme Court. The Herald in fact reports that Gill's lawyers initially wanted to have the case appealed directly to that court, but Florida Attorney General Bill McCollum objected, and moved to have the case first heard by the Florida Court of Appeals instead.

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