Challenge to Florida’s Adoption Ban Hits Appeals Court

Florida’s ban on any and all gay people from adopting in any and all circumstances is a one-of-its-kind ban, and the American Civil Liberties Union is doing its best in the now-pending appeal of a trial court decision striking down that ban to see the law swept from the books.  The Florida law is almost more cruel in its simplicity:  “No person eligible to adopt under this statute may adopt if that person is a homosexual.”  Section 63.042(3), Fla. Stats.  The case involves an openly gay man, Martin Gill, seeking to adopt foster children, two brothers, who he and his partner have raised for the past four years.

Martin Gill, with the two brothers he has raised for years and hopes to adopt. (Image from the ACLU Web site.)

Robert Rosenwald — the director of the Florida ACLU’s LGBT Advocacy Project and Gill’s lawyer — said today in an interview with Law Dork that he is “optimistic” that the trial court decision finding that the ban violates the Florida Constitution will be upheld on appeal.

The case, the appeal of which will be heard on August 26 by the Third District Court of Appeals in Miami, was heard at trial by Judge Cindy S. Lederman, then-chief of the Juvenile Division.  Notably, the case included extensive presentation of evidence about the foster children’s circumstances and, more generally, expert witness evidence regarding children raised in families headed by lesbian or gay parents.  Rosenwald said such evidence had not been present in either an earlier state court adoption case or a five-year-old federal case challenging the Florida adoption ban.  See Cox v Dep’t of Health and Rehabilitive Serv., 656 So.2d 902 (1995); Lofton v. Sec’y of Dep’t of Children and Families, 358 F.3d 804 (11th Cir. 2004), cert. denied, 535 U.S. 1081 (2005).

The trial court opinion (pdf) contained a more-than-30-page evaluation of the factual record and expert witness evidence.  It then presented 56 stipulated, or agreed upon, facts — including that “[b]ut for Section 64.042(3), Fla. Stats. [sic], DCF [Department of Children and Families] would have approved Petitioner’s application to adopt John and James.”  In re the Adoption of John and James Doe, Final Judgment of Adoption, at 35.

The court, only after presenting all that information, made findings of fact and conclusions of law, in which it found a violation of the Florida Constitution’s Equal Protection rights of both the prospective parent and the children who would be disadvantaged by Florida’s ban on adoption by gay parents, as well as a statutory violation of the children’s rights.

This decision is noteworthy for its acceptance of the claims brought by the guardian ad litem in the case, the lawyer representing the interests of the child.  A key part of the trial judge’s ruling found that “[a] law such as the blanket ban on adoptions by homosexuals infringes on the foster child’s right to be free from undue restraint and to be expeditiously placed in an adoptive home that serves the child’s best permanency interests.”  In re the Adoption of John and James Doe, Final Judgment of Adoption, at 40.

The state, represented by Republican Attorney General Bill McCollum, appealed.

As the ACLU makes clear in its appellate brief, the purpose of an appellate court, is not to re-try a case.  It is, for the most part, to review only the legal determinations made by trial judges.  As the ACLU’s appellate brief for Gill states: “Factual findings can only be overturned if ‘totally unsupported by competent and substantial evidence.’”  In re: Matter of Adoption of X.X.G. and N.R.G., Answer Brief of Appellee F.M.G. (pdf), at 12.  It goes on: “This [appellate] Court cannot pick and choose . . . among bits of testimony and reweigh the evidence.” Id.

The state of Florida, however, does just that.  For almost its entire brief (pdf), the state re-lists what it viewed as its “best” facts before the trial court and re-argues why its facts should be the facts on which the appellate court relies to determine whether Florida’s adoption ban is valid.

Rosenwald was unsurprised by this line of argument.  “The state is in the unenviable position of making arguments that are unsupported by the facts,” Rosenwald said.  “The state would like the appeals court to disregard the factual findings of the trial court and make its own findings.”

In one of the few points of the brief where the state does argue about the law, it presents a standard that every lawyer will love.  In describing “rational basis review,” the general review a court gives to a legislative enactment, the state describes the review — whether the provision is  “rationally related to a legitimate state interest” — as “uber-deference.” In re: Matter of Adoption of X.X.G. and N.R.G., Initial Brief of Florida Department of Children and Families, at 24.

In the children’s brief responding to the state’s brief in the appellate court, lawyers for the children note: “Regardless whether Section 63.042(3) can pass constitutional muster against the Father’s equal protection challenges, it is an arbitrary infringement on the Children’s liberty, which is anathema to the Fourteenth Amendment.” In re: Matter of Adoption of X.X.G. and N.R.G., Answer Brief of Appellees X.X.G. and N.R.G. (pdf), at 37.

The arguments in the appellate case, which take place on Aug. 26, will be open to the public.  If the appellate court upholds the trial court’s decision finding the ban to be unconstitutional, then Rosenwald said there will be an automatic appeal to the Supreme Court of Florida.  Even should the appellate court uphold the ban, which would make an appeal to the Supreme Court discretionary, Rosenwald believes the court will take the case because “this case has the evidence that they had wanted in” the earlier adoption case it heard.

Further information on the case, including additional briefs and news releases, can be found here at the ACLU’s Web site.

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