Wednesday, September 8, 2010

Oral Arguments in Ethan's Case

Ethan, from Fight to Adopt's FB Page

Well, I've got four full pages of notes from this morning's oral arguments as the State tries to appeal Judge Sampedro-Iglesia's final judgment of adoption ruling. It's probably going to take while to clean up and fact check all that was said and heard. But I can give a brief summary and a sense of the atmosphere.

Unlike the chaotic feel of the 11th Circuit Dependency Court, the Third District Court of Appeals is a quiet, sober and serious place. Presiding over the Court were Chief Judge Juan Ramirez, Jr., and Judges Gerald B. Cope, Jr., and Leslie B. Rothenberg. In attendance at the hearing were not just Vanessa and Melanie Alenier but Florida State Senator Nan Rich, Bernard Perlmutter of the UM Children and Youth Law Clinic, legal representation from the Guardian ad Litem Program (Hillary Kambour, Robert Latham, Khamisi Grace), Dr. Oren Wunderman and Lourdes Pons, heads of Family Resource Center, a child welfare family case management agency in Miami, among many others.

Of the three points addressed in the arguments in the DCF's appeal, the one that is the easiest to digest for non-lawyers is the issue of the potentially discriminatory effect of a special law (which is what you can consider a law specifically banning gays from adopting) and I'm going to focus on that for right now.

The DCF's attorney argued the specifics of a special law- that it be applied uniformly, and is applied rationally to the subject which it dictates, are valid in this case and that the Department of Children and Families should have the right to articulate who gets to adopt and who doesn't. Chief Judge Ramirez asked the DCF attorney whether or not the statute that mandates a ban on gays adopting would be defensible if it banned blind people from adopting? Or deaf people? Or brown-eyed people?

While other arguments in this appeal dealt with violation of equal protection and bill of attainder punitive action without trial issues, the special law issue really was at the heart of most of today's arguments between the two sides.

At one point, Judge Rothenberg asked repeatedly, rephrasing the question several times, whether the ban on gay adoption is really discrimination against gay parents or whether it's a best interest issue. The Aleniers's attorney, Alan Mishael, pointed out that the State's own Case Manager in the case had recommended the adoption, but Judge Rothenberg said that what was in question was not whether the parents were good parents but whether the adoption by gay parents was in the best interest of the child. She also said that the law stemmed from days in which it was thought that gays abused children (implying sexual abuse) and that we have moved far past those times. Her implication was that the origin of the law exists because gays, though potentially fine people and good parents, might not the best adoptive parents for a child (what Mishael terms a conclusive presumption of being unfit to adopt). She mentioned twice that we have moved past the days when gays were considered bad people.

Have we moved past those days? Really? If we have moved, why hasn't the law moved with us, I wonder?

The US fought a Civil War over the freedom of blacks from slavery, drafted and passed the 14th Amendment to deal with discrimination issues and yet though that war ended in 1865 it took 99 years for the US to enact the Civil Rights Act of 1964, ending racial segregation and outlawing major forms of discrimination against blacks and women.

How long before we get rid of a bad, discriminatory law in my state, I wonder? 

Paraphrasing Mr. Mishael, discriminating against gays is no different from discrimination perpetrated on people because they are black or Jewish or Cuban. It's discriminating against people because they are not like us, and therefore are presumably bad people.

Discrimination is just plain wrong. And legislated discrimination is abhorrent.

I'll be back soon with more thorough notes on the arguments in this case. But until then, let me just say that it is absolutely surreal to think that three people sitting on a bench get to determine whether Ethan gets to be adopted by the only parents he's ever known, parents recommended by the Case Manager and Guardian ad Litem who know them best, and whom everyone agrees are good parents.

How is it not in Ethan's best interest to be adopted by his good parents?

I'm just not seeing it. No, I'm not.

© Marzie @

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