The Irrationality of Florida's Gay Adoption Ban

As Jesse Walker
noted this morning, Florida Attorney General Bill McCollum

said on Friday he will not challenge a state appeals court
ruling that overturned a law banning adoption by gay people. Since
the Florida Department of Children and Families already had said it
would not ask the state Supreme Court to hear the case (a decision
that Gov. Charlie Crist supported), that means the law, the
country's only explicit ban on all gay adoptions, has been lifted
permanently. Last month Florida's Third District Court of Appeal
found
(PDF) there was no rational basis for discriminating against
adoptive parents based on their sexual orientation:

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 [adoptive father Martin Gill'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.

Agreeing with Miami-Dade Circuit Judge Cindy Lederman, the
appeals court said the adoption ban therefore violated the Florida
Constitution's equal protection provision:

All natural persons, female and male alike, are equal before the
law and have inalienable rights, among which are the right to enjoy
and defend life and liberty, to pursue happiness, to be rewarded
for industry, and to acquire, possess and protect property.

The court applied a "rational basis" test because "the parties
and trial court agreed that this case does not involve a
fundamental right or suspect class." Although rational basis review
is quite deferential, it is not hard to see why the court concluded
that Florida's ban was not "based on a real difference which is
reasonably related to the subject and purpose of the regulation."
For one thing, "the trial court found, and all parties agree, that
[Gill] is a fit parent and that the adoption is in the best
interest of the children." Furthermore, "the parties agree 'that
gay people and heterosexuals make equally good parents.'" The gay
adoption ban not only failed to serve children's best interests,
which is supposed to be the overriding aim of  adoption law;
it undermined this goal by arbitrarily excluding candidates who
could have given homes to children who would otherwise go
unadopted.
The only expert witness who actually testified in support of the
ban was this
guy. I discussed Lederman's ruling in a column
last year. Steve Chapman made the case for gay adoption in a 2008
column.
Julian Sanchez methodically disassembled the arguments for banning
gay adoption in a 2005 Reason article.

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