The End of the Anita Bryant Era?

Written by Joanna L. Grossman

An appellate court in Florida recently struck down the state’s ban on adoption by gays and lesbians (the only such law in the nation).  The Department of Children and Families announced last week that it will not appeal the ruling, but the state’s attorney general, Bill McCollum, has authority to take the case to the Florida Supreme Court to defend the constitutionality of the statute.

The law at issue, Fla. Stat. § 63.042(3), was enacted in 1977, as part of former Miss America and orange juice spokeswoman Anita Bryant’s national campaign to “save our children” from homosexuals.  The law provides that “No person eligible to adopt under this statute may adopt if that person is a homosexual.”  By interpretation the law was limited to “practicing” homosexuals, but it has been routinely invoked to deny petitions by gays and lesbians to adopt children, even in cases where the adults were already serving as foster parents to the children they sought to adopt.

It seems improbable that this law could have survived the U.S. Supreme Court’s ruling in Lawrence v. Texas (striking down a Texas law criminalizing same-sex sodomy on substantive due process grounds) and Romer v. Evans (striking down an anti-gay referendum in Colorado on equal protection grounds).  Yet, the Eleventh Circuit Court of Appeals upheld the law against a constitutional challenge in Lofton v. Secretary of the Department of Children and Family Services (2004).

But, despite Lofton, a Florida trial court in 2008 held that the law could not survive even the lowest level of constitutional scrutiny because it lacked a rational basis.  In that case, then styled In re Adoption of Doe, a man, known in court as F.G., was denied the opportunity to adopt two brothers he had been raising for several years as a licensed foster care provider.  The child protection investigator had pleaded with F.G. to take the boys in so they could have “a good Christmas.”

F.G. challenged the Florida statute that prevented him from becoming the boys’ permanent legal father.  The judge held a four-day trial, in which it focused on the scientific evidence about how children fare when raised by gays and lesbians versus by straight parents.  It ruled that the “best interests of the children are not preserved by prohibiting homosexual adoption.”

A 3-judge appellate court unanimously upheld this ruling.  The appellate ruling, now styled as In re Matter of Adoption of X.X.G. and N.R.G., the court agreed that Florida’s gay adoption ban is unconstitutional.Perhaps key to the appellate ruling was a set of stipulated facts.   All the parties agreed that F.G. was a fit father and that his adoption of the boys was in their best interests.  But for the statutory ban on adoption by homosexuals, the adoption would have gone forward without a hitch.  But even more importantly, the Department of Children and Families stipulated “that gay people and heterosexuals make equally good parents.”

The court analyzed whether the gay adoption ban could survive rational basis review since the challenge did not involve a fundamental right or suspect class.  But even with this deferential standard of review, the court concluded that the ban violated the equal protection guarantee of the Florida constitution.   The state argued that its ban on gay adoption is justified by the desire to provide better role models for children and to minimize the discrimination they might face in their adoptive homes.   Several features of the statute struck the court as irrational, given the state’s purported interest in serving child welfare.  No other group — including parents with previous verified findings of child abuse or neglect, or felons — is categorically excluded from the pool of adoptive parents.   And adoption is not reserved for those living in traditional family structures — unmarried couples and single adults can adopt and, in fact, account for a significant percentage of the adoptions in any given year.  And gays and lesbians, while categorically excluded from adoption, are permitted to serve as foster parents and legal guardians to children in Florida.

Very importantly to both the trial court’s and appellate court’s ruling, the social science evidence suggests that children raised by gay and lesbian parents fare as well as children raised by straight parents.  Even the experts who testified to the contrary did not, in the appellate court’s view, provide sufficient support for a categorical exclusion.  All available evidence suggests that adoption placements should be made based on individualized findings about the adoptive parent(s) and the home and care they will provide for a child.  Proposed adoptions by gay and lesbian parents should be conducted in the same manner as all other adoptions — based on a careful set of procedures designed to evaluate the best interests of the child.  If Florida lets this ruling stand, this can happen.