Wednesday, September 22, 2010

Third District Court's 3-0 Ruling

Justices Cope, Shepherd and Salter's landmark ruling finding the ban on gay adoption in FL to be unconstitutional can be found here.

Notes from the Ruling:

"Under Florida law, homosexual persons are allowed to serve as foster
parents or guardians but are barred from being considered for adoptive parents.
All other persons are eligible to be considered case-by-case to be adoptive parents,
but not homosexual persons—even where, as here, the adoptive parent is a fit
parent and the adoption is in the best interest of the children.

The Department has argued that evidence produced by its experts and F.G.’s
experts supports a distinction wherein homosexual persons may serve as foster
parents or guardians, but not adoptive parents. Respectfully, the portions of the
record cited by the Department do not support the Department’s position. We
conclude that there is no rational basis for the statute."

Best of all is Judge Salter's concurring independent opinion, which follows the ruling he joined. From that opinion:

SALTER, J. (concurring).

I concur in affirming the judgment of adoption in this case. I write only to
emphasize certain parts of the record beyond those detailed by the trial court and
my respected colleagues. Those differences pertain to (1) the record regarding 
the other persons in the adoptive parent’s household and (2) the substantial  
changes in law and Department of Children and Families’ policy after the
Legislature enacted subsection 63.042(3) in 1977.
The categorical ban was enacted in haste and reaction in 1977.16 Those who
voted for it in the legislature did not prohibit the placement of children with
homosexual foster parents or permanent guardians—only the permanent step of
adoption was addressed. Because the Department has approved homosexuals to
serve as foster parents and permanent guardians,17 the Department now has
years of experience and observation to inform its position and its testimony in the  
trial court. 

Moreover, the placement of children in those households has allowed
bonds and relationships to form that are in the best interests of children—steps
toward permanency and stability in young lives that have already known too 
much pain and separation. In short, the categorical ban and the statutory 
polestar of “best interests of the children” after an extended and very successful 
foster placement (as here) are inimical.
In striking the categorical ban of section 63.042(3) on equal protection
grounds, we need not address the larger controversy regarding same-sex
marriage.21 The Department’s policies and stipulations (Appendix, paragraphs 6
and 8) have made it clear that placement with a married couple, or even an
applicant who might later marry, is not the rational basis proffered in support of 
the ban. The unconstitutionality of this particular categorical ban regarding 
adoption simply leaves the Department in the position described by its chief of 
child welfare services in her testimony below:

Q. Okay. So if the state law didn’t exist and the folks in the
department were implementing the child welfare policy,
would there be a reason to exclude gay people from adopting?

A. If the law didn’t exist, we would use the same criteria to
assess those families as any other, and the best interest of the
child would be the, would be the norm.

With these few differences in analysis, I concur in affirming the final
judgment of adoption.

21 In the recently-decided federal case in California, Perry v. Schwarzenegger,
2010 WL 3025614 (N.D. Cal. Aug. 4, 2010), many of the same equal protection
arguments, and two of the expert witnesses who testified in the adoption case here,
were cited in the court’s order.

Slater's ruling is both wonderful and accessible.

Let's hope DCF Secretary Sheldon gets his wish and the case is further appealed to the Supreme Court by the State. Let's get this law off the books!

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