DOJ Statement on Gay Parenting: An Impact on Florida Adoption Case?

As noted earlier, the U.S. Department of Justice took a strong stand today for LGBT equality in at least one portion of its brief in Smelt v. United States, the portion related to LGBT parenting.  Coincidentally — or not — the appeal of an adoption case where the trial court decision favored gay parents is due to be heard in a Florida courtroom next week.  The lawyers for DOJ today wrote:

Unlike the intervenors here, the government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.7  Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because “the sterile and the elderly are allowed to marry.”  For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

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

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

The immediate question this raised for me was whether this language could find its way down to Florida, where the court of appeals will soon be hearing the appeal of In re: Gill, a challenge to Florida’s ban on adoption by gay people.  As I discussed in a preview of the case last month:

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).

Regardless of their consideration here, the DOJ statements certainly will be included in briefing for the likely appeal before Florida’s Supreme Court.

This adoption case quickly shows the potential value of the Department of Justice’s refutation of the outdated arguments against gay parenting in its Smelt reply brief earlier today.

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About the Author

Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect,, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.